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How continuing medical treatment can help prove Serious Impairment of Body Function

April 20, 2013 by Steven M. Gursten

I’d like to share my advice column from this month’s issue of Metro Detroit Attorney At Law magazine. I write the column  for lawyers who represent and defend auto accident cases. I’ve been writing a series of columns, mostly aimed towards plaintiff attorneys, on ways that lawyers can increase the value of auto accident cases, and to help them to survive defense motions for summary judgment on Michigan’s threshold requirement of Serious Impairment of Body Function.

Here’s my latest column in my series on strategies for attorneys litigating auto accident cases. These strategies can be used to increase the underlying value of these cases, and to help establish a “Serious Impairment of Body Function” under our current legal threshold. It is my belief that each of these strategies can also be utilized in the future as well, should our threshold law change once again.

This month’s column focuses on the importance of continuous medical documentation and continuing medical treatment for auto accident victims.

Even under the strict threshold set forth in Kreiner v. Fischer, continuing medical treatment is critical.  All five of the “non-exhaustive” factors outlined in Kreiner can be satisfied by properly documenting an accident victim’s continuing medical treatment.

1. Continuing to document injuries and the impairments they cause by ongoing medical treatment shows the nature and extent of these injuries.
2. The type and the length of medical treatment required for these injuries is another important factor.
3. The duration of the impairment is illustrated by the need, or the lack thereof, of continuing medical treatment.
4. The extent of residual impairment can be defined by “physician-imposed” restrictions (as versus the more subjective or self-imposed restrictions by an accident victim).
5. Opinions on the prognosis for eventual recovery should be made by treating doctors, or by the plaintiff’s IME (independent medical examiner).

There were many serious problems with these five factors, all of which became very apparent during the Kreiner era. As lower courts attempted to follow Kreiner, these five “factors” proved exceedingly problematic. Simply put: the Kreiner factors created terrible public policy. First, Kreiner’s emphasis on analyzing injuries through temporal/durational factors, i.e. how long an impairment lasted, meant that many very seriously injured people who nevertheless made good medical recoveries and who tried to return to work shortly after a car accident were severely punished.

Second, emphasis on “physician-imposed restrictions” (which was wholly absent in the short statutory definition of “serious impairment of body function”) conflicted with what happens in real life.  Most busy doctors don’t patiently list out a long list of medical restrictions after an office visit.  Instead, in real life, most doctors often advise, “if it hurts, don’t do it.” Generally, a doctor is far too busy to spend time delineating each activity a patient shouldn’t do, when she has a packed waiting room.

Kreiner and its progeny made it clear that a Plaintiff’s IME (see my first column) is crucial for auto accident lawyers. It establishes residual impairments and physician-imposed restrictions. Also, it can show the extent of residual impairments when treating doctors are unwilling to create a list of the patient’s “physician-imposed” medical restrictions and prognosis.

Importance of the first six months

Even now, post-Kreiner, every auto lawyer should still focus on the first six months after an automobile accident.  The focus under Kreiner on temporal and durational factors meant that these first six months ultimately determined if an accident victim’s case would be viable or not.

I do not know what the future will bring, or if our auto threshold law will change yet again, but it would be very wise for all plaintiff lawyers to remember our past to better prepare for what may come.

Your focus during these first six months should be in making sure that an auto accident victim is documenting his injuries and treating with the correct medical specialists. Most importantly, this helps your client get better. It also helps to document the medical injuries and impairment caused by a motor vehicle accident.

Lastly, it establishes critical legal documentation before the insurance companies send your client to insurance medical examiners, who will mostly likely terminate your client’s no-fault benefits (one of the more sad consequences of practicing auto law in a state with no first-party bad faith law or punitive damages). Obviously, subsequent treatment and referral to needed specialists becomes much harder once your client’s benefits have been terminated and if your client is already cut-off.

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