TOV Injury and Safety Blog

New test may detect chronic traumatic encephalopathy before symptoms appear

The New York Times reported this week on a new medical study involving boxers and chronic traumatic encephalopathy (CTE).  CTE has gained prominence as professional football players' autopsies continue to demonstrate evidence of brain injury that was previously considered a product only of blows to the head suffered by professional boxers.   Indeed, the disease was formerly known as dementia pugilistica.  Today, as one after another NFL player is prematurely struck down by memory problems, depression, and intellectual dysfunction, the disease is gaining notoriety among a completely different population.  The suicide of 62-year old Ray Easterling, former Atlanta Falcon, after years of premature dementia, is only the most recent example.  The disease has gained additional notoriety as returning Mideast war veterans have experienced a high rate of post traumatic stress syndrome, CTE and suicide.

USAA penalized for unreasonable delay in paying no fault PIP medical benefits

USAA, the company that advertises its "special relationship" with military families and claims to provide them with enhanced service, was penalized again this week for unreasonably delaying payment of no fault personal injury protection (PIP) benefits.  The insured, Rana Reyes, who suffered from depression, became distressed in 2008 when her boyfriend changed his Facebook status to "single."  She accompanied the love interest to the bar, where she became intoxicated and highly emotional.  As they were driving home from the bar, she became angry when her companion would not reciprocate her expressions of love and announced she was leaving the car. She opened the door and fell out at 35-40 miles per hour.  Her head was struck by the rear passenger wheel, causing a severe head injury.

Veteran's autopsy fuels concerns over brain injury in returning Mid-East vets

The autopsy of a 27 year-old ex-Marine, formerly an honor student, has lent urgency to the discussion of Post-traumatic stress disorder (PTSD) in returning veterans.  The New York Times preported on April 26 that after the unnamed veteran's post-divorce suicide, an autopsy discovered evidence of chronic traumatic encephalopathy (CTE), the same form of brain injury observed in boxers and football players after repeated concussions.

The former A-student had returned from two tours in Iraq suffering from memory problems, irritability and social withdrawal.  He began drinking heavily, was diagnosed with PTSD, caused a drunken car crash, and his wife commenced divorce proceedings.  At his parents request, police investigated his apartment and found that he had hung himself.  The discovery of CTE, objective damage to his brain, strongly suggested that there may be a physical component to returning veterans' PTSD in addition to the pschological component.  Although there has been only one peer-reviewed medical publication of CTE findings in a returning vet's autopsy, the NYT reported that investigators associated with three separate scientific study groups have found additional examples that are headed toward publication. 

These findings, if borne out, would help to explain the signifcant increase in post-deployment suicides among Mid-East veterans, and also help physicians to better understand the traumatic origin and foundation of PTSD.  Unfortunately, CTE cannot be detected by any means other than autopsy, severely limiting the usefulness of these findings in treatment.

Successful lawsuit unravels in litigation over litigation-funding loan

The ugliest aspect of modern litigation was on display as the Court of Appeals considered the allegations made by Nancy Shanks against her attorneys, Morgan & Meyers, PLC.  Shanks was rear-ended in an auto accident and claimed that she suffered a head injury, back and neck pain and exacerbation of pre-existing depression.  After hiring the defendants to pursue her legal claim, within seven months she obtained loans from Cambridge Management Group, LLC, in a total amount of $125,000.00, bearing 4.99% interest PER MONTH, compounded monthly.  (She had managed to spend her first $100,000.00 loan between July and December.)

Ultimately, the attorneys achieved a default judgment against the auto negligence defendants who failed to answer the negligence complaint, and in October of 2008, the claim was settled, while on appeal, for $625,000.00.  By normal standards, this represented an unusually good recovery for a claimant with potentially very defensible injuries.  Nevertheless, an argument ensued over the debt owed to CMG, which claimed liens totalling $325,819.00 for loaning Shanks $125,000.00 for an average of about 10 months.  The lien claim was settled, however, Shanks then sued her attorneys arguing that they had breached a fiduciary duty to her by facilitating her loans with the litigation-funding company.

Families seeking $30.00 per hour round-the-clock "life skills" attendant care services lose appeal

Pamela Armisted and the guardians of five other severely brain-injured families sued State Farm Mutual to recover attendant care benefits that State Farm deemed excessive.  State Farm paid the families for 24-hour care, apparently, however, it refused to pay them $30.00 per hour based on the market cost of "life skills trainers."  After extensive discovery which resulted in the court sanctioning State Farm for misconduct, a 20-day trial was held.  The jury ultimately accepted State Farm's argument that if the families had actually provided such extensive care, they should have generated extensive documentation to confirm it.  On that basis, the jury ruled that the families were not entitled to the higher per-hour payment rate.

Family-provided no fault attendant care is analyzed thoroughly

When William Hardrick was struck by a car in 2007, he suffered a severe head injury.  He was eventually allowed to live at home, however, his physicians ordered that he receive 24-hour attendant care "for supervision and safety."  His parents provided this care and his auto insurer, the Auto Club, paid the parents $10.25 per hour.  The parents argued, however, that the care they were required to provide included specialized skills and administrative support which justified a higher hourly rate.  AAA disagreed and the matter went to litigation.

Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

No fault injury victim cannot collect attorneys fees from Farmers Insurance

The Guardian of Denise Nail sued her insurance carrier, Farmers Insurance Exchange, after Farmers terminated Nail's PIP medical benefits.  Nail suffered a closed head injury when she was struck from behind by a vehicle traveling over 55 miles per hour.  After paying benefits for several months, Farmers sent Nail to an "independent" medical examiner, Dr. Thomas Gola, who concluded that Nail suffered "no neurological deficits that would be consistent with traumatic brain injury."  Farmers then terminated benefits.

Court rejects Auto Club's bid to diminish Conservatorship obligations of PIP carriers

Mark Fullmer was appointed by the Probate Court to serve as a substitute Conservator for Deanna Theresa Cisneros, a woman who suffered a closed head injury in a Michigan motor vehicle collision.  The Conservator billed AAA for Fullmer's expenses, including expenses incurred to assist with real estate and debt disputes as well as legal work provided to secure no fault benefits.   AAA argued that under section 3107 of the no fault act, any expenses incurred by the conservator not related to obtaining medical care should be limited to $20.00 per day for three years.  It did not argue that Cisneros did not need a conservator or that the need was not caused by the motor vehicle collision.

Semantics of "tort reform" again defeat common sense

Last month, a coach who encouraged two of his football players to "finish it" after his players had interrupted a locker room fight, was discharged from liability because he didn't actually throw a punch.  The Court of Appeals reversed the trial judge's holding that when the coach re-started the fight, he caused the subsequent serious injuries.  It relied upon the tort-reforming "Engler Majority" Supreme Court justices' ruling that for a government employeeto be responsible for his gross negligence, he must be the sole cause of any injury.

This month, the Court of Appeals repeated this elevation of semantics over good sense.  It held that a varsity lacrosse coach who allowed his team to practice on the sidelines of a j.v. game, after being warned of the danger, did not "cause" injuries to a trainer struck in the head.  The Court again suggested that the sole cause of the injury was the person who flung the ball--even though this action could not have occurred if the coach had exercised reasonable authority.

To manipulate the phrase of a famous Justice, these decisions are another sad reminder that in our era, the "life of the law" is not logic or fairness, it is politics. The case is Litzenberg v. Guiffre, L'Anse Creuse Public School District, et al.

Court allows insurer to re-examine attendant care rate

Michael Demery suffered a serious head injury and an amputated arm in a 2003 motor vehicle accident.  His wife is an R.N. and in 2005, the Court ordered AAA to pay her $30.00 per hour for skilled attendant care.  AAA sought to re-open the case in 2009, arguing that Demery no longer required skilled care and that his wife should be compensated at $11.00 per hour, rather than at her R.N. hourly rate.  The Circuit Court granted Demery summary disposition, holding that the parties were bound by the prior judgment.  The Court of Appeals overturned, holding that the insurer had alleged a sufficient change in circumstances to entitle it to a new determination of Demery's wife's hourly attendant care rate.  It will come as no surprise that Judge Henry Saad was on the panel:  he votes for the insurer in every situation.  It would be interesting to see if he would have voted to allow Demery to re-open the prior Court determination for the purpose of increasing attendant care.

Virginia Tech releases data on relative safety of football helmets

For eight years, Viriginia Tech has been outfitting college football players with helmets equipped with accelerometers to track the force of impacts involving the players and the incidence of concussion.   The study did not attempt to assess rotational forces involved in causing head injuries.  Football helmet manufacturers have agreed in the past not to publish similar studies, with the excuse that the information would be misleading or mis-used.

Well known hockey brawler's brain evidences CTE

Rob Probert, a former Red Wing, was known as an "enforcer" in the NHL with more than 3300 penalty minutes over his 16 year career.  When he collapsed and died of heart failure in July, 2010, his autopsied brain showed substantial evidence of chronic traumatic encephalopathy.  As with many football players, Probert's brain suggests that repeated concussions result in permanent brain damage that can become debilitating over time.

State Farm avoids paying attendant care after arbitrator's math error

Teresa Dumont,  the next friend of her injured daughter, Marie Dumont, sued State Farm for attendant care she provided as a PIP benefit.  The parties agreed to submit the claim to an arbitrator, who  ruled that Teresa  was entitled to $19.00 per hour for taking care of Marie.  The Dumonts were forced to seek help from the Circuit Court, however, after the arbitrator made a mathematical error in calculating the number of hours of care provided:   he based the award on 9,046 hours of attendant care rather than 16,487 hours.   The Circuit Court found that the arbitration award was based on a "mutual mistake" by the parties and "evident miscalculation" by the arbitrator, and increased the arbitration award accordingly.  State Farm appealed, arguing that the Court did not have the authority to correct an arbitration judgment based on mutual mistake.  The Court of Appeals agreed and reversed the ruling.  The  judges did, however, agree to modify the Circuit Court's judgment so as to limit State Farm's duty to indemnify the family from health care provider's claims.

Court of Appeals refuses to hold IME physician accountable for negligence

Dawn Dubuc was a Ford Motor employee when she suffered orthopaedic injuries and a closed head injury in a motor vehicle collision.  About a year later she decided that she could not continue to work and began to draw disability.  After a number of months, Ford sent her to its Independent [huh--if you believe that, we've got some land in a Florida swamp to sell you...] Medical Examiner, Dr. Adel Ali El-Magrabi.  Dubuc's attorney accompained her to the examination solely to observe the "history" given to the doctor.  The Doctor felt that Dubuc was not answering cogently and terminated the IME.  In response, Ford discontinued her disability benefits and required her to report to work within five business days.  She sued Dubuc for defamation and tortious interference with her employment relationship.

Post-suicide autopsy of young college football player reveals trauma-induced brain damage

This week the family of a University of Penn junior co-captain and lineman revealed that his post-suicide autopsy had identified the early stages of chronic traumatic encephalopathy, or CTE.  The 21 year-old player, Owen Thomas, had hung himself in his off-campus apartment after a "sudden and uncharacteristic" emotional collapse.   He had never suffered a documented concussion and apparently had no history of depression, leading investigators to believe that his brain injury was the result of repeated subconcussive collisions suffered while playing football.  Investigators cautioned that depression and suicide during college years are not uncommon and that Thomas' suicide was not being attributed solely to post-traumatic impulse control or depression.  Nevertheless, they noted that some persons appear to be genetically wired for vulnerability to CTE, and that NFL-level trauma is not necessary to induce it.  Thomas is the youngest player to-date to be diagnosed with CTE on autopsy.

Football player's family sues Riddell

The LA Times reported today that the family of Edward Acuna has filed suit against Riddell, alleging a defect in the padding in the front of Acuna's football helmet.  Acuna suffered a subdural hematoma that left him permanently partially paralyzed during a football game in October of 2009.  The family's attorney alleges that Riddell was aware of the padding problem in the helmet for a decade prior to Acuna's injury.

Ground-breaking study links ALS diagnosis to head injuries

The New York Times published a report on August 18, in which physicians questioned whether Lou Gehrig actually died from Lou Gehrig's Disease, or Amyotrophic Lateral Sclerosis.  The report anticipates a new peer-reviewed paper to be published this week in a leading journal on neuropathology. The study suggests that many athletes and war injured-veterans have been mis-diagnosed with ALS when they actually suffer from damage to the central nervous system.  Although it doesn't identify Gehrig by name, the authors explained to the NYT that Gehrig's history of severe concussions without resting and his subsequent demise suggest a high likelihood that trauma played a role in his death.

Court splits on rules governing head injury treatment

A three-judge panel of the Court of Appeals could not agree with regard to whether the Healing Place, Another Step Forward, and New Start, Inc. could bill Farm Bureau for head injury treatment to Linda Wallace, a legally incapacitated individual.  Wallace was a belted, rear-seat passenger in a car when she suffered a closed head injury and fractures of the hip and femur.  She was initially in a coma and later suffered from post-traumatic amnesia.  She sought treatment at the above facilities, however, they were not licensed as Adult Foster Care entities or as Psychiatric Hospitals.  On that basis, the Court of Appeals held that many of the services provided to Wallace were illegal and could not be billed for payment under the no fault statute. One of the three judges would have summarily disallowed payment for any treatment by all of the facilities.

Children and incapacitated adults granted limited relief from "one year back" rule

This week the Michigan Supreme Court backed away from a prior decision that had denied infants and incompetent persons the benefit of additional time to file lawsuits in no fault cases.  Under provisions of the Revised Judicature Act that have been the law in Michigan for decades, the statute of limitations is "tolled" while a person is an infant or mentally incompetent.  The potential litigant--who by definition cannot sue on his own without a court-appointed conservator, "next friend" or guardian-- then has a brief period after the "disability" is removed in which to file suit.  These provisions were applied to all claims of an infant or incompetent person up until the Engler Majority of the Supreme Court decided the Cameron case in 2006.  In the latter decision, the 4-3 conservative majority held that the no fault "one-year back" rule was not a statute of limitations and exempted it from the operation of the tolling provision of the RJA.  The decision was also given retroactive effect:  the immediate impact was a windfall of literally millions of dollars to the state's auto insurers who were relieved of the duty to pay no fault benefits--particularly medical benefits--where payment negotiations had extended beyond the "one year" limitation.

Court rejects malpractice insurer's claim that stroke victim's lawsuit should be summarily dismissed

Rose DeMario's family sued Christopher Nichols, D.O., and Oakwood Hospital, claiming that she should have been admitted for a work-up after an ER visit on January 11, 2005.  The family maintained that given her presentation, the standard of care required Rose's doctors to admit her to investigate her symptoms.  They allege that if Rose had been admitted for a work-up relating to TIAs (transient ischemic attacks) and stroke, Rose would not have suffered a fatal stroke the following week.  The family argues that a proper work-up would have identified Rose's acute vascular insufficiency condition, allowed for timely treatment, and saved her life. 

Court addresses interplay of No Fault insurer's obligations and school district's legal duties

Under Michigan law, public school districts owe a duty to provide certain services to children who have special needs.  These services are usually defined through the IEP [individual education program] process:  the IEP is a detailed, comprehensive examination of the child's needs and it involves the child's parents, teacher(s), medical records and school system specialists.  An IEP conference is held annually and the child's educational needs are compiled in a detailed report.  In some cases, the "needs" identified in the IEP also fall within the obligations of a no fault insurer required to provide for the educational and rehabilitational needs of a child injured in a motor vehicle collision. 

University of Michigan study sheds light on post-traumatic stress disorder

U of M researchers recently published a study examining the genetic fingerprint of DNA from 100 Detroit residents, including 23 individuals suffering from post-traumatic stress  disorder.  In total, they examined more than 14,000 genes.  Among their findings was a propensity for certain immune system-controlling genes to become over-active in persons suffering from PTSD.  Their interpretation?  While it has long been believed that diseases and psychiatric conditions represent an "interplay between social and biological factors," these findings "support the idea that exposure to a traumatic event can trigger genetic changes that alter the body's immune system."  The result is severe and dysfunctional anxiety. 

State Farm avoids liability to health care provider for no fault medical payments

Eric Afful was hurt in a car accident.  He sought payment for his medical bills, including bills for treatment of a head injury.  State Farm alleged that Afful was attempting to defraud the company with fraudulent claims for home attendant care and in a trial, the jury agreed.  On that basis, State Farm was allowed to negate any duty to pay for medical expenses under a clause in its contract excluding all liability where a fraudulent claim has been pursued.  TBCI, Inc. had filed a separate suit against State Farm, seeking payment for $35,000.00 of medical care it had provided.  The Court ruled that the exclusionary clause in Afful's contract and the verdict against Afful  for over-reaching allowed State Farm to avoid its obligation to pay any health care provider for services rendered.

Farmers Insurance forced to pay attorney's fees for unreasonable denial of PIP benefits

Dolphus Tinnin is a mildly retarded 57-year old who lived with his mother.  He was struck by a car and suffered a mild head injury and a fractured femur.  Farmers was responsible to pay his No Fault Personal Injury Protection benefits, which included all related medical and attendant care.  After two years of paying, the adjuster refused to pay for his visits to a rehabilitation doctor and also stopped paying the mother for attendant care.  Eventually, Dolphus' attorneys filed suit for both expenses.  The parties attended several mediation and settlement procedures and adjourned trial on several occasions, however, Farmers refused to offer any compromise.  The case then went to trial.

Court overturns award of PIP benefits to family of boy killed by runaway motorcycle

Josh Eddy was struck by a runaway motorcycle at a racetrack, suffered a severe head injury and later died.  His parents attempted to recover their substantial medical expenses through a No Fault PIP action against Titan Insurance Company.  Because motorcycles don't fall within the "normal" definitions of No Fault, the family initiated the action against Titan becauses it was the insurer of a friend's van.  The family sued the van's insurer because the van was parked unreasonably close to the straightaway of the race track (within 60 feet, with only a snow fence and bales of straw as a barrier), and the motorcycle struck it, before careening off and causing Josh's catastrophic head injury.  The family argued that parking the van too close to the track created an unreasonable danger of injury to Josh and his companions. 

Belgian study finds surprising evidence of brain function in "vegetative" patient

The New England Journal of Medicine is reporting on a new study that is both stunning news and likely to be subjected to undue, superficial speculation.  Using an MRI technique, Adrian M. Owen, a neuroscientist and co-author of the report, has been able to measure brain activity that would suggest active cognitive function in minimally conscious or comatose patients.

Jury will decide whether passenger can sue impatient bus driver

Talya Rothfeld boarded a Capital Area Transportation Authority bus on the MSU campus on a nasty-weather day.  After fumbling for a fare, but before she could reach the front row of seats, the driver "impatiently" accelerated rapidly, causing her to fall and strike her head.  She sued for hier injuries, claiming that it was negligent for the driver to rush off, given the wet footing, before she could reach a seat.  The bus authority sought summary disposition, arguing that the "usual incidents of travel" doctrine exempted the bus and its driver from responsibility for Rothfield's injury.

No Fault PIP claim dismissed because injury victim's notice was inadequate; court also addresses sanctions and providers' licenses

Jory Magness sued Frankenmuth Mutual and the Auto Club to collect PIP benefits arising out of his head injury.  The appellate court did not explain why both insurers were involved.  In any event, Auto Club was dismissed from the case because the trial judge concluded that Magness did not provide it with the required statutory written notice of injury within one year.  Although Auto Club had received telephone notice of the claim, had obtained a police report, and had interviewed Magness's mother over the phone, it argued that none of these activities were sufficient to fulfill Magness's statutory duty to provide notice. 

Challenge to expert testimony regarding head injury and back problems is rejected

Youssef Salman sued Amica Mutual Insurance Company for Personal Injury Protection benefits after he was injured in a car accident.  He claimed that he had suffered spinal cord and head injuries that resulted in the need for extensive attendant care.  At trial, he presented the testimony of several doctors, including appropriate specialists who had conducted physical examinations and provided treatment.  The jury accepted their testimony and awarded Salman $160,000.00 in benefits.  The insurer appealed arguing that the expert testimony was inadequate to support either a head injury diagnosis, or that the spinal cord problems were trauma-related and not simply degenerative.

Court allows cerebal palsy case to go forward, but not against Hospital who recommended doctor

Cynthia Soufane (Rooke) sued her obstetrician, Jung Wu, and St. Joseph Mercy Hospital, doing business as McPherson Hospital, after her son, Bryan, was born with devastating birth defects.  She claimed that Bryan suffered massive, avoidable, permanent damages (he is retarded and confined to a wheelchair with severe cerebal palsy) when Wu failed to diagnose a premature rupture of membranes or to administer antenatal steroids.  Somewhat surprisingly, mom was able to recruit prominent physicians, including the head of maternal-fetal medicine at the University of Michigan, to support her claim that Bryan would have been born relatively normal if the standard of care had been observed.  The trial court dismissed her claim, however, holding that her expert testimony was not specific enough.  The trial court also held that even though a McPherson Hospital employee had allegedly referred Soufane to Wu as "our doctor," she could not hold the Hospital accountable for his negligence.

Court upholds insurer's second-guessing of doctor's long-term disability

David B. Cox was awarded long-term disability insurance and Social Security disability after suffering an event which his neurologist described as a stroke.  After paying benefits for two years, the ERISA insurer, Standard Insurance Company, "reevaluated" Cox's disability and determined that he could return to the practice of Family Medicine.  Cox filed an administrative appeal, which was denied, and then filed suit in Federal Court to challenge the decision.

NFL data unwittingly confirms football-dementia risk

A memo prepared by an attorney for the NFL's 88 Plan, a joint NFL and Players' Union project to identify and provide support for veterans suffering from dementia, inadvertently confirmed the disproportionate risk  of dementia that veteran players face.  The memo originally concluded that NFL veterans' risk of dementia did not exceed the statistically anticipated risk, when NFL experience was compared with other studies of broader population groups.  After experts used the NFL data and compared it with these studies in a statistically appropriate manner, however, the data yielded the opposite conclusion:  NFL veterans are experiencing dementia at "four or five times" the rate we would predict in a normal population.

Most experts on head trauma agree that concussions and other head injuries increase the risk of dementia, and most medical experts express the greatest concern about multiple head injuries or head injuries occurring before a prior concussion has fully healed.  The NFL, however, has been loath to accept the implications of this data, despite paying about 6 million dollars to 106 veterans in the past few years.

The program has identified 68 men, ages 60 - 89 who are receiving aid, and 35 others who received aid before they died.  It has also identified a number of other qualified veterans who have failed or refused to apply for aid.  When the age-at-onset of these veterans is taken into account and they are properly compared with non-football dementia research, it is apparent that NFL veterans are far more likely than others of similar age to suffer from severe dementia.  The author of the original NFL memo now admits that his contrary conclusion was flawed.

More evidence of the danger of head injuries in football

The death and autopsy of 42-year old Western Illinois football player Mike Borich added fuel to the evidence that repetitive blows to the head playing football can cause chronic traumatic encephalopathy (CTE), a condition similar to that suffered by many boxers.  The pathology of Borich's cerebral cortex demonstrated widespread damage to the former Chicago Bears and  Brigham Young University assistant football coach.  This adds to the evidence found on autopsy of eight NFL players who died between the ages of 36 and 52:  most exhibited extreme emotional problems and all exhibited irregular protein deposits and neurofibrillary tangles in the "thinking" or "executive function" and judgment locations of the brain.  It is thought that the physical condition leads to depression and substance abuse in many subjects.  While there may be a genetic predisposition toward the development of this condition, neurologists from the Boston University School of Medicine and the Rockefeller Neuroscience Institute took pains to emphasize that the condition can only be caused by physical trauma.

Supreme Court reverses lower court decision; allows State Farm to claim fraud

Raymond Andres was horribly injured in a car accident and now requires 24 hour attendant care.  State Farm was his auto (PIP) insurer and has been obligated to pay for this care.  State Farm initially entered into an agreement to pay Andres' family for the care provided, but later refused to pay, alleging that the agreement had been fraudulently arrived at by some form of collusion between Andres' attorney and State Farm's adjuster. 

University of Michigan study appears to confirm dementia risk among pro football players

The National Football League commisioned a study by the University of Michigan, intended to analyze whether head injuries and concussions occurring in football increase the likelihood of dementia.  Prior studies have suggested such a connection, and have also demonstrated an increased risk of depression and other head injury-related symptoms in veterans, long after the conclusion of their playing careers.  Apologists for the league, including Dr. Ira Casson, co-chairman of the league's "concussions committee" have regularly denounced the methodology of previous studies and called for further research.  Well, this week the League's first commissioned study confirmed that League veterans suffer a vastly increased risk of long-term brain injury complications.

Defense attempt to muzzle expert testimony is rejected

Raquel Robelin's baby was born with an APGAR of 2 and suffered a stroke in the nursery, leaving the child partially paralyzed with severe developmental limitations and significant cerebral palsy.  Robelin's attorneys claimed that the child's stroke was suffered only a few moments before her birth, and that late decelerations on the fetal monitor warned the O.B. Gyn that the child was suffering hypoxia and should have been delivered by C-section hours earlier.

In response, the Defendants claimed that Robelin's expert, a pediatric neurologist, should not be allowed to testify because Defendants argued there were no scientific studies in the medical literature directly supporting the doctor's opinion that the stroke occurred just prior to the child's birth.

Farm Bureau punished for "lying in the weeds" on experts

Laura Putnam-Wesener suffered a head injury, apparently, in a motor vehicle collision.  She sued the other driver and she also had to fight with her own insurer, Farm Bureau, to collect PIP benefits.  Ultimately, she settled the claim against the at-fault.  In the meantime, Farm Bureau sought leave of the court to add as expert witnesses the neurologist and neuropsychologist who had examined the injured woman for the at-fault's insurer.  The problem was that Farm Bureau sought to add the experts 18 months late, and the Court had already extended the expert witness deadline once to accommodate Farm Bureau's request to add expert physicians.

Eleven-year old with multiple fractures can't sue the drunk

In Cottrill v. Craig Kenneth Senter, two judges of the Court of Appeals recently held that an injured eighth grader could not sue the drunk who crossed the center line and hurt him.  The two judges ruled that even though there wer intimations of a head injury, and proven evidence of a fractured wrist, comminuted fracture of bones in the foot, and fractured ribs, the minor plaintiff had not alleged a "serious impairment of bodily function."

The dissenting judge pointed out that the drunk (with a .30 blood alcohol) caused the boy to miss two months of eighth grade and two full seasons of football, along with enduring several months of inactivity and an episode of difficulty breathing resulting from the multiple rib fractures.  He was still experiencing residual chest pain and had gone a full month without weight-bearing, along with needing attendant care for several weeks.

The two judges who dismissed the case determined that young Cottrill's injuries "did not change the trajectory of his life," applying the Engler Majority's Kreiner standard of "serious impairment."  The majority opinion pointed out, a propos of the latter conclusion, that the boy testified "he did not expect [his rib pain] to continue much longer."  We are glad to hear that an eleven-year old's anticipated prognosis for his own injuries is now admissible on the subject of "serious impairment."  Clearly the standard of intellectual analysis and discourse in our judiciary is becoming elevated.

Doctors' affidavits establish question of fact regarding traumatic brain injury

In MacDonald v. Koch and Norandex Reynolds Distribution Co. the Court of Appeals recently held that affidavits filed by the injured man's doctors were sufficient to create a question of fact with regard to whether MacDonald had suffered a traumatic brain injury that constituted a "serious impairment of bodily function."   MacDonald had sued the at-fault driver and his employer after a motor vehicle collision.  By law he must prove that he suffered a "threshold" injury, and the pertinent statute addresses the proofs necessary to prove a head injury separately from other injuries. 

Soldiers donate brain tissue for study of head injuries

The New York Times reported today that 20 active or retired members of the military have agreed to donate brain tissue for study after their death.  All 20 soldiers were victims of significant concussive brain injuries in the middle east and suffered substantial negative consequences.  They have made the donations to the Boston University Center for the Study of Traumatic Encephalopathy.  The study will be conducted by the Sports Legacy Institute, which recently published research linking pathology findings to concussion injuries and damages including cognitive decline and depression among professional football players.

Expenses for care of catastrophically injured Michigan no fault victims

Attorneys and the families of catastrophically injured no fault victims continue to watch the Michigan Supreme Court to see what will happen with PIP expenses in the situation where the families avoid institutionalization.  From 1974 until a few years ago, the Supreme Court took the position that families could be fully compensated for keeping a catastrophically-injured loved one out of an institution by providing care for him or her.  The Court held that if an expense was payable to an institution, it would be payable to the family, as well. 

Two new books published on intractable headaches, tumors and the practice of neurology

The New York Times Book  Review section identified two new books addressing these topics.  They are Brain Surgeon by Keith Black, M.D., published by Wellness Central, and The Body Broken by Lynne Greenberg, Random House. The physician reviewer thought that the two books complemented each other by offering the perspectives of treater and patient.

State Farm clobbered for repeatedly disputing PIP benefits

Antonina Juzba suffered a severe brain injury in a motor vehicle accident.  She was insured for no fault benefits by State Farm.  The insurer paid for her treatment initially, but stopped paying after she spent months at the Rainbow Rehabilitation Center and the Ann Arbor Rehabilitation Center (AARC). 

Additional evidence of cumulative brain injury from the NFL

The New York Times reported this week that brain damage commonly associated with boxers has been found in the brain of a sixth deceased former NFL football player under age 50.  Doctors at Boston University School of Medicine identified chronic traumatic encephalopathy (CTE) in the brain of Tom McHale who died at age 45 and played pro ball for nine seasons. This condition can be identified only on autopsy and has been found in each of the former pro ballplayers who have died under the age of 50 and been tested. 

Doctors explain recovery from ICU is often lengthy and ultimately incomplete

A series of studies underway at leading medical institutions point to the conclusion that ICU patients leave the ICU with significant residual problems.  Doctors involved in ICU care report that patients, even young ones, may be physically weak and/or emotionally and intellectually debilitated for years after even a short stay in ICU.

Federal Court rejects Michigan "reform" procedure on head injuries

In the recent Shropshire v. Laidlaw Transit decision, a panel of Sixth Circuit judges refused to follow Michigan "reform" procedures addressing how auto no fault head injury cases should be pursued.  Shropshire involved an alleged head injury suffered by a five-year old in a collision with a bus operated by Defendant.  Head injuries can be notoriously difficult to quantify when a young child is involved.

Recoverable expenses and services where catastrophically injured no fault victim lives at home

In Hoover v. Michigan Mutual, the Court of Appeals recently addressed the complicated issue of caring for a catastrophically injured accident victim.  Under Michigan's no fault act, the insurance company obligated to provide Personal Injury Protection [PIP] benefits to the victim (usually the insured's own company) is required to pay all of the expenses reasonable and necessary for the victim's "care, recovery or rehabilitation".  Michael Hoover was struck by a drunk driver, as a child, and has been cared for at home by his parents for more than 20 years.  The defendant in this case was the insurer of the drunk and responsible for Michael's PIP benefits because there was no auto insurance in his household.  Michigan Mutual had discontinued paying certain of Michael's parents' expenses and the lower court had awarded family these expenses, plus fees and costs.

$2.5 million verdict against Allstate for attendant care to paralyzed boy's family is upheld

In Bonkowski v. Allstate, the Court of Appeals rejected virtually all of Allstate's complaints regarding a 7-figure verdict holding that it had underpaid a family for no fault attendant care.  Shaun Bonkowski was struck by a car in 2001.  He was paralyzed from the neck down and also suffered a severe head injury.  The driver was never identified, however, Shaun was insured with Allstate through his family, and Allstate became obligated to provide him with no fault personal injury protection benefits (PIP).

Court refuses to apply expert limitation on closed head injury testimony

In TBCI PC v. State Farm, a panel of the Court of Appeals interpreted one of the recent tort "reforms", this one governing testimony in closed head injury cases.  Several years ago, the legislature adopted a rule that required accident victims to present the testimony of a physician who "regularly treats head injury victims" in support of any claim for head injury against the at-fault driver.  In TBCI PC, the court ruled that there was no similar limitation on State Farm, and that it could use the testimony of a non-qualifying expert in an effort to deny brain-injury medical benefits to its insured.