I think you can make the same argument here as you made before. It makes no sense to have an exception to get to a jury if at the end of your trial, the jury still has to find an objective manifestation. That’s why we have the exception.
But there’s one more argument you can make and use and that is there are now a number of cases that have come down in Michigan that actually say that neuropsychological testing is sufficient to satisfy the Netter definition of objective manifestation. The latest is Amos in 2005.
Trap number four. This one is really nasty.
Steve, excuse me for a second.
Are you saying that once you get to the jury on an affidavit or through this exception, you, at that point, do not have to prove serious impairment or you just have to prove it’s an open damages case?
No. I guess what I’m saying is clearly you don’t have to meet the objective manifestation prong of the definition. I think you still have to show poor body function, which since Socrates said the brain is the most important body function of all, that shouldn’t be a problem and the effect on the person’s general ability to lead his or her normal life.
Trap four is nasty. This is basically how it goes. In a nutshell, if you handle traumatic brain injury cases, we all know the literature is pretty clear that eighty-five percent of people basically make a good recovery within two years. That’s pretty well accepted in the medical literature. And as an aside, when you’ve got a neuropsych eval by let’s say a Baker or a Greiffenstein, or Podell started doing this like a year or two years ago I’ve noticed, what they’re doing is they’re playing games with statistics, because what they do is they say because he should have been better your plaintiff, because eighty-five percent of people go on to make full recoveries, your guy should too, and therefore, it’s probably something else, like a somatoform disorder or malingering or what have you. So once you realize that, the game they’re playing, they’re basically just lying with statistics, and you can cross-examine them on it that way. But, you know, the reality is if you handle traumatic brain injury cases, a lot of your patients will get better, or you may have what I notice a lot, which is they get cut off by the IME and then the treating doctor suddenly, miraculously finds that he’s gotten better and doesn’t need to treat any longer. You can make the same argument here.
Kreiner almost completely ignores the closed head injury exception except for one footnote but it’s an extremely important footnote. It’s footnote 15 that says that there’s a special rule. It’s great language. There’s a special rule for closed head injures. Now, some of you may be saying, Steve, it’s just a footnote. Well, that’s true, but if it’s just a footnote that said that there was a difference between physician-imposed restrictions and self-imposed restrictions and almost fifty cases were dismissed because of that footnote, so I think footnote 15 is very important and should be used. I think the language from Minter.
And by the way, Minter was not the first decision to use the automatic language. It actually was used first in a number of unpublished decisions as well. But again, Minter is published, and again, talks about the automatic route to a jury and hope and pray.
Trap six, because I’m almost out of time, you must make sure if you have a checklist when you’re going to trial that you are obtaining testimony
de bene esse in your trial depositions that there may be a serious neurological injury from your treaters. The nice thing is the court of appeals in 2005 in a case called Amos which was my partner Dave’s case and it was a great, great result and a great decision. Amos, by the way, also reaffirms in 2005 Beyer vs. Smith on a noncontinuing threshold. So a very important decision. Amos gives you a clear blueprint and outline on how to ask the question. It takes the transcript of the deposition that Dave did of the neurologist and shows you this is how you ask the question.
Trap seven, properly qualified. This is in reference to the Block vs. Pollack case. And this case kills me because it’s so criminal. That the neurologist said that five percent of his cases are closed head injury and the court said that’s not sufficient, that he’s not “regularly treating or diagnosing closed head injury.” Now, think about that for a second. This is so absurd. If a neurologist spends five or ten minutes with a patient, which is conservative but probably about right, that’s about forty patients a day in an eight-hour day. That’s 200 patients a week in a five-day week excluding hospital and everything else. If you take five percent, that means ten patients a week are closed head injuries. So are we saying that a neurologist who’s treating ten people a week with a closed head injury is not regularly treating or diagnosing people with closed head injuries? So the moral of the story is this; nip it in the bud in trial prep and it won’t be a problem.
Parting advice. When using strategy number one, the automatic route, play it safe. Don’t assume “automatic” means automatic. Going back to objective manifestation again, neuropsychological testing is sufficient, but don’t stop there. Think about SPECT, think about PET, EEG, QEEG, FMRI, diffuse tensor MRI. There are a lot of new tests out there when you start thinking outside the box that can be applied to these brain injury cases that will meet the threshold and will add value.
And I’ll tell you a real neat trick. I’m out of time, but I think this is really important. Use a normal MRI to meet the Netter definition. All Netter says is capable of detection through medical testing. Well, stop thinking about having to rule in and start thinking about having to rule out. So for example, you have a normal MRI like ninety-nine percent of these cases are. What does that mean? That means there’s no lesions, no tumors, no space-occupying masses. There’s nothing else out there that could explain the symptoms the plaintiff is having besides diffuse axonal injury, which of course doesn’t show up on MRI. So what you’re doing with a normal MRI is you’re not ruling it in, but you’re ruling it in by ruling everything else out and I think it’s a great tactic that can be used.
Remember Churchman. Please put in language not just in effect or may effect like the statute requires. Go above and beyond that. Severely or seriously effects. Look, if you’re worried — if you’re in Grand Rapids, you’re worried a treater is not going to do it, pull your patient and get them to a doctor who actually cares about your patient, or at the very least, get him to a plaintiff IME who can use the medical literature and be able to at least diagnose a closed head injury and sign an affidavit so you can get to a jury.
Must satisfy McDonald vs. Vaughn. This has been spoken about by other speakers in the last couple years. It’s in the materials. Must comply with MCR 2.119, been talked about by other speakers, in the materials.
So everybody looks really depressed from here. I wish I was wrong. I’m probably not. I’m really smart. I’m sorry. Just now you’re warned, so just good luck and have fun and be creative. Thank you.