Car Accident Lawyer Highlights Court Trend Requiring Permanent Injuries for Plaintiffs to Win
I’d like to remind my fellow car accident lawyers that judges in Michigan are forgetting injuries do not need to be permanent to be serious. This is exemplified in O’Keefe v. Auto Club, an unpublished Michigan Court of Appeals win for an auto accident victim who sustained neck and back injuries.
I make note of it because although the plaintiff wins, this case perpetuates the problem of seemingly requiring that an impairment is permanent in order for it to qualify as a serious impairment of body function. In O’Keefe, the fact that saves the day for the plaintiff’s claim is that her residual impairments “appear to be permanent.”
That is at odds with the statute, of course. According to the Michigan no-fault law, a serious impairment of body function is “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”
It’s even at odds with Kreiner v. Fischer. There’s also nothing in Kreiner that says injuries need to be permanent. To the contrary, the Michigan Supreme Court majority in Kreiner specifically said “an injury need not be permanent …” As such, the court is essentially reading this permanency requirement into the rule.
The court’s development of the serious impairment of body function jurisprudence has routinely made “permanency” the fact that distinguishes a winning from a losing case. Seriously, just check out the plaintiff-wins, both published and unpublished. Impairment permanency is a very, very frequent theme.
Physician-Imposed Restrictions Apply to Other Contexts
Also of note in this case is the gloss the court gives to the restriction issue. Even though the plaintiff refrains from doing many activities because of pain (housework, yard work, playing with grand kids, reading, using the treadmill, camping, going for walks, marital relations), and even though the doctor never actually restricted her from those activities, the Court of Appeals didn’t reject her claim based on the “self-imposed restrictions” versus “doctor-imposed restrictions” distinction.
Instead, the court said the doctor’s prescription for attendant care covered the plaintiff. The quote is so amazing I had to reprint it for you:
“(The) physician’s letter stating that plaintiff needed attendant care services for house and yard work … does not explicitly restrict plaintiff’s activity, but it is a reasonable inference that if a physician prescribes attending care services for housecleaning, laundry, shopping and garden work he has determined that plaintiff cannot do these things without assistance.”
It’s significant that the attendant care prescription for house and yard work was interpreted by the court to also serve a restriction not only on house and yard work, but also on activities that had nothing to do with house and yard work.
Again, this case is considerably noteworthy because the court determined the plaintiff met Michigan’s personal injury threshold. Still, it continues to perpetuate the notion that a plaintiff can only win on threshold if his car accident lawyer can show a permanent injury.
And that’s a problem.
– Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest reported jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.
– Photo courtesy of Creative Commons, by ellievanhoutte
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