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Why MI car accident victims should get their day in court “Moore,” after Moore v. Swafford

July 30, 2015 by Steven M. Gursten

Competing medical evidence in auto accident lawsuit  warrants jury trial, using insurance IME doctors backfires

car accident court

A very nasty but common insurance defense trick of using IME (insurance medical exam) doctors in car accident lawsuits has backfired.

And as a result, more people who’ve been injured in automobile accidents will now stand a better chance of receiving full and fair compensation for pain and suffering.


In Moore v. Swafford, the Michigan Court of Appeals ruled that the difference of opinions between an auto accident victim’s treating doctor and the insurance company’s hired IME doctor warranted having a jury – not a judge – decide whether the person was entitled to “noneconomic loss” damages, which is also known as pain and suffering compensation, under Michigan’s No Fault auto insurance law.

“[C]ompeting medical evidence regarding the nature and extent of plaintiff’s shoulder injury” … “was material to the determination of whether plaintiff suffered a serious impairment of body function and the issue therefore was a question of fact for the jury.”

*    *    *

It “created [“genuine issues of material fact”] for the jury to determine regarding the nature and extent of the injury plaintiff suffered during the car accident … [and] whether [that injury] amounted to a serious impairment of body function.”

From my perspective as an auto accident attorney who’s been helping car and truck accident victims for nearly 20 years, this is a hugely important decision.

The reason is because somehow, auto insurance companies and their defense lawyers, have been duping trial judges for years by using IME doctors as support for “serious impairment” motions for summary disposition. And many trial judges, who have no real practical background in medicine or auto accident litigation, have been using these IME reports to side with the defense and dismiss cases as a matter of law. This takes away their right to a jury trial under the 7th Amendment and says, in effect, that reasonable minds cannot differ and this issue is correct for a judge to decide instead of a jury.

This of course gives the insurance companies great incentive to use the nastiest and most corrupt insurance defense doctors they can find. After all, the nastier the report, the better.

Over time, this shameful litigation strategy has proved so effective that hundreds of people injured in car accidents have received far less pain and suffering compensation than they deserve. And hundreds more accident victims lost everything, having their car accident lawsuits dismissed – especially during the Kreiner v. Fischer era in Michigan.

But the implications of the Moore decision are that injured car accident victims should – and will – more frequently get their “day in court” before a jury of their peers.

I believe this decision is a welcome, albeit long-overdue, “righting” of a substantial wrong in the way Michigan’s No Fault auto insurance law is interpreted and applied.

A car accident shoulder injury

In Moore, Myrtle Flossie Moore was stopped for traffic when her vehicle was rear-ended. At an emergency room, she complained of right shoulder pain. A radiologist, who X-rayed her shoulder, concluded there was no evidence of a torn rotator cuff (which cannot be shown on X-ray, and is a rather neat example of why judges should not be making medical determinations in car accident lawsuits).

Later, when the pain continued and did not go away, an orthopedic surgeon determined Ms. Moore did have a right-shoulder torn rotator cuff. This was  based on the results of an MRI exam, which will show a rotator cuff tear, unlike an X-ray which will show broken bones.

The orthopedic surgeon treated Ms. Moore and, eventually, he performed surgery on her shoulder.

Ms. Moore sued the at-fault driver who caused the rear-end car accident for pain and suffering compensation (i.e., “noneconomic loss” damages).  In the lawsuit that was filed, the at-fault driver’s insurance company asked a judge to dismiss the case, rather than send it to a jury, because – the auto insurer insisted – Ms. Moore hadn’t shown she suffered a “serious impairment of body function.”

“Serious impairment of body function” is what’s required under Michigan law for any person who has been injured in a car accident to prove in order to be able to sue for pain and suffering compensation.

The trial court agreed with the at-fault driver. The judge dismissed Ms. Moore’s lawsuit.

‘Competing medical evidence’ of shoulder injury

The Court of Appeals reversed, ruling that Ms. Moore’s lawsuit should be resolved by a jury of her peers, not solely by a judge.

The Michigan No Fault law provides that “issues of whether the injured person suffered a serious impairment of body function … are questions of law for the court [i.e., they’re issues that must be heard exclusively by a judge – with no option of a jury trial] …”

However, if there is a “factual dispute concerning the nature and extent of the person’s injuries” and the dispute is “material to the determination of whether the person has suffered a serious impairment of body function,” then the case may go to and be decided by a jury.

In Moore, the appellate judges determined the case should have been heard by a jury because a “material,” “factual dispute” existed based on the following facts:

  • “[T]he findings of the radiologist and the orthopedic surgeon appeared to be at odds.”
  • “There was competing medical evidence regarding the nature and extent of plaintiff’s shoulder injury.”
  • “Although plaintiff denied that she had prior shoulder problems, defendant’s medical exhibits suggested otherwise. Specifically, defendant’s exhibits showed that plaintiff had a significant medical history showing multiple treatments and issues with her shoulder, back, and spine. This evidence created an issue of fact for the jury to determine regarding the nature and extent of the injury plaintiff suffered during the car accident; there were issues of fact as to whether the problems plaintiff was experiencing with her shoulder were pre-existing conditions or were caused by the accident. Critical to the determination of whether plaintiff suffered a serious impairment of body function was whether plaintiff tore her rotator cuff as a result of the accident. Morgan’s medical opinion supported that plaintiff did indeed suffer a torn rotator cuff while the radiologist concluded there was no evidence of a tear. Additionally, there was evidence that plaintiff’s physical therapist performed a “traction maneuver” on plaintiff’s shoulder that increased her shoulder pain ‘considerably.’ While Morgan doubted that the maneuver ‘changed the structure of the shoulder that much in terms of rotator cup lesions or other possible structure,’ this left open a question of fact for the jury to decide.”
  • “As noted above, there was evidence that plaintiff had numerous medical issues and ailments before the accident. However, evidence also supported that plaintiff injured her shoulder in the accident and that … the injury affected her general ability to lead her normal life.”

This case is an example of something I’ve been speaking about at legal seminars and writing about on the pages of this legal blog for some time now. It’s an example of a trial court judge, who either based upon political predisposition toward an outcome that he favors, or based upon a total lack of sophistication on the medicine, takes away someone’s right to a jury trial and right to compensation.

It perpetuates a broken system that creates a huge financial incentive for insurance companies to hire and use the most corrupt so-called “independent” medical examiners to do IMEs in car accident lawsuits, so that the insurance company can use these reports and hopefully have more cases dismissed before more trial court judges.

Hopefully, Moore v. Swafford will help stop this from happening in the future.

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