Closed-head Exception Benefits Auto Accident Victims Suffering from Traumatic Brain Injuries

Many victims of traumatic brain injuries due to Michigan automobile accidents worry about whether their injuries and impairments will qualify for third-party lawsuits under the state’s threshold injury requirements. The question of particular concern involves cases in which brain injury symptoms are not readily apparent and do not show up in MRI’s or CT scans.

While in the past these cases may have been a serious concern and many victims of traumatic brain injuries were denied the right to sue for the damages they suffered as a result of long-term impairments, it is not so often the case anymore. Currently, victims of traumatic brain injuries are exempt from certain requirements that used to disqualify them from third-party lawsuits if their injuries were not either visible or documentable through medical testing. This is known as the “closed-head injury exception.”

Why the Closed-Head Injury Exception is Needed for Cases of Traumatic Brain Injuries

Michigan has one of the nation’s best automobile insurance laws that guarantees that everyone injured in an automobile accident (with very few exceptions) receives lifetime benefits to cover their medical needs. It also covers limited but significant quantities of lost income and other related economic losses. No accident injury victim has to worry about whether he or she will get the treatment their injuries require. However, there are tradeoffs for this great advantage. The chief of these is that injury victims cannot file third-party lawsuits against the driver at fault for the accident to recovery non-economic damages, such as pain and suffering or loss of joy of life due to impairment, unless their injuries are very serious. Injuries that qualify for third-party lawsuits are known as threshold injuries. The closed-head injury exception helps more victims of traumatic brain injuries meet the threshold injury requirement.

In a third-party lawsuit, it is standard for the defense attorney to file a motion to dismiss the lawsuit on the claim that the plaintiff’s injuries don’t meet the threshold requirements. In the case of traumatic brain injuries, it is common for defense lawyers to claim the injury doesn’t satisfy the “objectively manifested” requirement. Among the requirements for a threshold injury is that it must be objectively manifested, which is typically interpreted as being either visibly apparent (others can see the injury) or that it can be detected and documented through medical testing, such as an MRI, CT scan, X-ray, etc. If an injury is not objectively manifested, then the lawsuit will be dismissed.

Many brain injury victims experience impairments as a result of their injury but the injuries don’t have indicators that register on an MRI or CT scan and aren’t visible to observers. For several years, these injury victims were denied the right to sue for non-economic damages under the “objectively manifested” clause. Nonetheless, they suffered greatly and often could not work or continue in their chosen career path because of the impairments as is common with victims of traumatic brain injuries.

Fortunately, legislators got wise and amended the law to include the closed-head injury exception. This rule states that cases of traumatic brain injuries and their related impairments can qualify as a threshold injury (and thus the victim can sue for non-economic damages) as long as a medical doctor (“a licensed allopathic or osteopathic physician”) who regularly diagnoses or treats closed-head injuries testifies under oath that “there may be a serious neurological injury.” To thwart a motion for summary dismissal, this testimony is usually filed as an affidavit. In a trial, the physician must testify on the witness stand where he or she will be subject to cross-examination by the defense.

As you can see, the closed-head injury exception is vitally important to helping traumatic brain injury victims recover the damages they need to compensate them for the impairments and disabilities they suffer as a result of an automobile accident. However, this rule does not guarantee that a brain injury victim will be eligible for a third-party lawsuit or that such a lawsuit will be successful. A number of other elements must also be proven.

Cases Involving Traumatic Brain Injuries More Likely to Succeed with Experienced Detroit Auto Accident Lawyer

Despite the closed-head injury exception, proving the existence of a traumatic brain injury and its impairments in court is extremely difficult. A great deal of information must be documented, and usually multiple experts must diagnose and testify regarding the injury. A lawyer with experience in auto accidents and brain injury cases will know what experts to seek diagnoses and treatment with and how to document a case for success in the courtroom. An experienced lawyer will also know how to present a case persuasively in court and improve the victim’s chance of winning a verdict or settlement.

In Michigan, the personal injury firm of Sachs Waldman, P.C., has several car accident lawyers experienced in fighting brain injury cases on behalf of clients whose lives were turned upside down due to traumatic brain injuries that could not be detected medically. If you’ve suffered a brain injury as a result of an auto accident, our firm can assist in getting you the benefits you’re entitled to even if your symptoms aren’t visible or medically detectable. Call our Detroit personal injury attorneys’ office at 1-800-638-6722 to schedule a free consultation.