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Hearing loss and tinnitus car crash case goes to jury

January 24, 2018 by Steven M. Gursten

Court: Judge’s selective hearing – focusing on ‘two words’ – didn’t make hearing loss and tinnitus claim a figment of car accident victim’s imagination

Jury will hear car accident victim's hearing loss and tinnitus case

Lindsey Patrick wasn’t making it up when she claimed to have suffered hearing loss and tinnitus after a Kent County car accident.

Not only did she complain early and often about her hearing loss and tinnitus, but both conditions were substantiated and observed by the medical experts she was treating with and by her husband.

But by the way in which her car accident lawsuit for pain and suffering compensation was dismissed – and then promptly reversed by the Michigan Court of Appeals in a rare published opinion – it’s clear the insurance company’s defense lawyer and the trial judge chose to believe she was making the whole thing up out of thin air.

In Patrick v. Turkelson et al., Ms. Patrick sued for noneconomic loss damages under Michigan’s No Fault Law after a car accident left her with “hearing loss and ringing in her ears” (which is known as tinnitus).

As part of the lawsuit, her otologist/neurotologist testified in a deposition where she noted – among her many expert opinions and findings – the two following points:

  • Tinnitus is a “‘phantom sound that somebody perceives,’ which is ‘something that is inside your head that you hear, not from the environment.’”
  • The “components of an audiogram [such as was administered to Ms. Patrick] required a patient to acknowledge whether or not the patient heard a sound that was presented to the patient” and “this kind of testing relied on the patient ‘subjectively reporting what they heard.’”

That was enough for the Kent County trial judge.

Disregarding the plentiful supporting evidence, he zeroed in on these statements as his justification for dismissing Ms. Patrick’s lawsuit:

The car crash victim has “not shown any objective manifestation of her subjective complaints of tinnitus [and “hearing loss”] or otherwise demonstrated any physical basis for those complaints …”

On appeal, the Michigan Court of Appeals rejected the trial judge’s selective hearing approach:

  • “The words used by [Ms. Patrick’s otologist/neurotologist] in her explanations cannot be used out of context to render Lindsey’s claimed hearing impairment nonexistent as a matter of law. Yet the trial court essentially focused on these two words, to the exclusion of all the other evidence in the record, as providing dispositive proof that Lindsey’s hearing problems were somehow a figment of her imagination.”
  • “As previously discussed, Lindsey’s hearing issues manifested themselves in ways that were observable by [her husband] and documented by medical professionals, and the record contains evidence of these medical findings. Lindsey clearly was not making unverifiable, subjective complaints of mere pain and suffering. Rather, she provided evidence which if believed would establish a physical basis for her complaints.”

Case helps clarify ‘Objectively Manifested Impairment’ Prong of Auto Accident Threshold Law in Michigan as it applies to hearing loss and tinnitus

What a terrific ruling this is, both for Ms. Patrick and for all of the car accident injury victims who suffer headaches, or tinnitus, or RSD (Reflex Sympathetic Dystrophy), or hearing loss. All of these people (and their lawyers) are routinely forced to defend, explain and justify their own truthful, painful and often debilitating accounts of how their lives have been turned upside down by a car crash.

What happened in Patrick is wrong and unjust, but it is also an all too common occurrence under an incomplete understanding of the “objectively manifested impairment” prong of Michigan’s auto accident threshold law – which is what auto accident victims must comply with in order to sue for pain and suffering compensation (which is also known as noneconomic loss damages).

Based on my own experiences as a car accident lawyer, I know how difficult the so-called “invisible injury” cases like hearing loss and tinnitus can be. These cases are aggressively defended by insurance defense lawyers who cherry-pick the evidence to, then, file a motion for summary disposition, alleging the car accident victim has not met the objective manifestation requirement of Michigan’s serious impairment of body function threshold test.

Importantly, the Court of Appeals’ published ruling in Patrick goes a long way towards leveling the playing field for auto accident injury victims who suffer hearing loss and tinnitus, as well as other injuries that are very difficult to objectively prove by diagnostic testing.

The error in dismissing a hearing loss and tinnitus case based on ‘two words’ from the car accident victim’s expert

Because there was a “subjective” component to the hearing tests that the car accident victim in Patrick underwent, the driver who hit her – along with the judge – concluded the test results couldn’t be relied on as proof that she actually suffered hearing problems as a result of the crash:

“Defendants argue, and the trial court seemingly agreed, that because there exists a subjective component to the hearing tests, namely that Lindsey must indicate when she hears a particular sound, [the] conclusions [by the victim’s otologist/neurotologist] were not evidence of an objectively manifested impairment. Rather, defendants contend, the testing which revealed hearing loss was dependent on the subjective verifications of Lindsey and thus, her hearing loss does not constitute an objectively manifested impairment [which is one of the requirements for suing for pain and suffering compensation in Michigan].”

The Court of Appeals rejected this reasoning for the following reasons:

  • “[T]he fact that there exists a subjective component to the hearing test does not negate a finding that Lindsey’s hearing loss is an objectively manifested impairment.”
  • “While testing a person’s hearing necessarily involves self-reporting by the person being tested, the record reflects that this testing also includes objective components (such as examining the movement of the eardrum and acoustic reflexes) and is relied on by medical professionals.”
  • “The fact that [the victim’s the victim’s otologist/neurotologist] used the word ‘subjective’ in describing this self-reporting process does not completely negate the significance of her determinations. Nor does [the expert’s] description of ringing in the ears as the hearing of a ‘phantom’ sound dispositively affect the analysis: her description illustrates the entire problem that a person with this symptom experiences hearing a sound that is not heard by anybody else because it is not generated in the external environment.”
  • “[E]xamination of the entirety of the record in the light most favorable to plaintiff plainly reveals that Lindsey’s complained of symptoms and conditions were observed and perceived by [her medical specialists’] testing as well as the testimony of [her husband]. Consequently, [Ms. Patrick] has demonstrated, in accord with [Michigan Supreme Court precedent], that there is a physical basis for her complaints.”

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