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The Worst Michigan Traumatic Brain Injury Case – Lawyers Beware

December 23, 2008 by Steven M. Gursten

Michigan traumatic brain injury lawyers must be on high alert after a Dec. 18, 2008 U.S. Court of Appeals for the Sixth Circuit case that dismissed the brain injury claim of an injured child. The Court declared that the “automatic” route to a jury, created to protect victims of traumatic brain injury under Michigan’s car accident law, is procedural, not substantive, and does not apply in federal court. This case will effectively wipe out most brain injury cases from car accidents in the federal courts.

In Livonia Shropshire v. Laidlaw Transit, Inc., the Court ruled on its own accord — the defense never even raised the issue — that they could dismiss the TBI claim of a child injured in a car accident who was subsequently diagnosed with brain injury and seizures. The Court contended the “automatic” route to a jury for closed-head injury victims found in MCL 500.3135(2)(a)(ii) does not apply in federal court.

In our opinion, this decision is a shocking example of form over substance, of either cold-hearted indifference or a startling lack of medical sophistication regarding traumatic brain injury by Sixth Circuit Judges Norris, Rogers and Kethledge.

The Closed-Head Injury Exception for TBI Victims

To review, Michigan courts have interpreted the language in 500.3135(2)(a)(ii), also called the closed-head injury exception, as “automatically” entitling a person who has suffered a traumatic brain injury to get to a jury, if a properly qualified doctor testifies that there may be a serious neurological disorder present. The automatic route was created by the Michigan Legislature specifically to protect victims of traumatic brain injury.

Without this exception, the majority of car accident victims who have suffered brain injuries would not be able to file a lawsuit for their injuries, because most brain injuries are not identifiable by diagnostic testing. These injuries, even though they can be very severe and disabling, would therefore fail the first prong of Michigan’s “serious impairment of body function” threshold in Kreiner v. Fischer, which requires any injury suffered from an automobile accident to be “objectively manifested.”

Lack of TBI Medical Understanding

Regarding the lack of medical understanding reflected by this opinion, the Court simply noted (despite a neurologist finding traumatically induced seizures and a serious neurological injury) that:

“Hannah’s youth at the time of the accident – she was five years old and had just finished kindergarten – makes it difficult to apply Kreiner to her case. Nonetheless, we begin by noting those things which have not been affected by Hannah’s alleged injury: Hannah has, by her mother’s account, missed only two weeks of school due to this accident, largely for visits to the doctor, so her injury cannot be said to have affected her ability to attend school. Nor has her injury, or the alleged seizures that come along with it, affected her ability to participate in activities or interact with other students and friends – she enjoys doing many things typical for a girl her age, such as playing basketball, riding her bike, and playing with her best friend …To be sure, there is more to academic performance than that – just because a student does not fail or need a tutor does not mean that her ability to perform academically has not been affected substantially enough to change her ability to lead her normal life.”

As a Michigan traumatic brain injury lawyer that has helped many victims of brain injury, including children, this is astonishing. The analogy many doctors use with children who have suffered brain injury is to holes in a barrel of water. For example, the brain may have some very large “holes”– completely disabling consequences caused by the brain injury — but because of the victim’s young age, the “water” has not yet reached a level where these holes are going to become apparent. In other words, many pediatric brain injuries will cause severe functional impairments, but until the victim reaches a certain age where the brain is challenged, these impairments can take time to manifest.

Hannah Shropshire had just finished kindergarten when her accident occurred. We can make an educated prediction that she may face significant future challenges, as she continues to have seizures and an abnormal EEG (electroencephalogram). The fact that she can play and interact with other young children does not mean she will not suffer the effects of a very serious brain injury as she grows. The impairments she may face will likely grow as the demands on her brain become more challenging.

Medical Literature on TBI Ignored

The Court also chose to ignore literature regarding pediatric brain injury. Even if Hannah never faces further complications from her injury, she is now far more at risk for early death, Parkinson’s, dementia, Alzheimer’s, severe clinical depression, suicide, divorce and other problems, due to her first traumatic brain injury.

Because of a condition referred to as “reserve brain capacity,” Hannah is also far more at risk if she suffers a second brain injury. The consequences of a second brain injury superimposed on her first, even if there is a good medical recovery, can be catastrophic.

Other factors ignored by Shropshire include medical literature examining the long-term effects of traumatic brain injury on children who have suffered a previous brain injury (reserve brain capacity), whether the child had any pre-existing learning disabilities or any pre-existing neurological or psychiatric problems and finally, whether there was any history of family problems. All of these issues have been documented as very poor predictors for the outcome of children who have suffered a traumatic brain injury. Again, this analysis is also absent from the judges’ decision.

Michigan TBI Lawyers Must Do Better

The Michigan Legislature, in recognizing these horrific risks caused by traumatic brain injury, created special protections for victims of automobile accidents who suffer TBI. Shame on these Sixth Circuit judges for so easily casting these protections aside.

The onus and burden of this decision falls now on Michigan accident lawyers to create a more comprehensive record that may offer further protection for brain injured clients in the federal court system. Of course, I write “may” because a federal court judge applying only the Kreiner factors to determine impairment may still dismiss any brain injured child’s case because it is so difficult to show a serious impairment for a child at this young age.

Frankly, Shropshire is one of the worst and most tragic decisions I have ever read. In their apparent desire to dismiss young Hannah’s case, the panel of judges may not even have considered just how bleak and devastating her future may be. Hannah is a young girl in grade school, who may go on to face any number of debilitating medical problems that she is now statistically far more at risk for than the normal population. My wishes and prayers are with Hannah and her family.

Tomorrow, I will continue blogging about this horrific case. I’ll explain that children don’t recover from traumatic brain injury better than adults do, and that physical recovery from TBI is not a sign that a child has recovered — both vital factors in this case that the Court also ignored.

Steve Gursten is a member of the American Association for Justice Traumatic Brain Injury Group and has lectured to lawyers throughout the United States on helping victims of TBI from motor vehicle accidents.

Related information:

Traumatic Brain Injury (TBI) from Auto Accidents

Concussion Injuries

Why Winning Auto Injury Cases Has Become So Challenging

13 Ways to Meet Serious Impairment and Increase Auto Accident Case Value

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights.

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3 Replies to “The Worst Michigan Traumatic Brain Injury Case – Lawyers Beware”

  1. What is the divorce rate percentage of those who suffer a TBI? In the TBI support group I attend in Syracuse, NY I hear that it is much higher than the national average. Is that true? I suffered aTBI and my wife has filed for a divorce.

    Jeff Johnson

  2. The divorce rates, as well as rates for suicide, alzheimers, dementia, depression, and many other very troubling consequences are much higher than for the average population. I have heard divorce rates approaching 90%, but the statistics vary widely and it is difficult to say for certain since it may include all medical classifications of brain injury, or moderate and severe only.

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