Michigan Court of Appeals; Docket No. 210347; Published
Judges Collins, Sawyer, and Cavanagh; 2-1 (with Judge Cavanagh Concurring in part ant Dissenting in part); Per Curiam
Official Michigan Reporter Citation: 240 Mich App 223; Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era – 1996-2010) [§3135(7)]
Determining Serious Impairment of Body Function as a Matter of Law (Kreiner Era – 1996-2010) [§3135(2)]
Evidentiary Issues [§3135]
Closed Head Injury Question of Fact [§3135(2)(a)(ii)]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
This published Opinion written by Judge Collins deals with summary disposition of traumatic brain injury cases under the threshold injury provisions of section 3135(2)(a). This case involved brain injuries suffered by an 11 year old girl in a pedestrian automobile accident. The trial judge granted defendant's motion for summary disposition under the provisions of section 3135(2)(a) because plaintiff had failed to submit a legally adequate medical affidavit under the "closed head injury exception" set forth in section 313 5(2)(a)(ii) which creates a question of fact in a closed head injury case if an M.D. or D.O. "who regularly diagnoses or treated closed head injuries testifies under oath that there may be a serious neurological injury." The plaintiff in this case submitted an affidavit of an examining physician who stated that plaintiff "had sustained a post traumatic stress disorder with closed head injury and traumatic brain injury," but the affidavit did not state that plaintiff had sustained a serious neurological injury as required by the statute. The trial court ruled that this affidavit failed to satisfy the statutory requirements and the Court of Appeals affirmed. In discussing the type of affidavit that must be filed by a plaintiff in order to trigger the closed head injury exception, the Court of Appeals stated in pertinent part:
"Plaintiff first argues that under the plain language of the statute, a plaintiff who is diagnosed with a closed-head injury automatically meets the §3135 threshold. We disagree. If such were the case, the Legislature would not have required testimony that a plaintiff had sustained a serious neurological injury, but simply would have required testimony that a plaintiff had sustained a closed-head injury.... Thus, to give effect to the phrase 'serious neurological injury,' we must conclude that the closed-head injury provision of § 3135 requires more than a diagnosis that a plaintiff has sustained a closed-head injury.... Traumatic brain injury may be classified as mild, moderate, or severe.... Indeed, even a diagnosis of mild traumatic brain injury may include 'a spectrum of manifestations that can range from transient mild symptoms to ongoing disabling problems.' [citation omitted] Thus, when presented only with a diagnosis of 'traumatic brain injury,' a trial court is not in a position to know whether that injury was serious or not.... While it is clear from the affidavit presented to the trial court that [plaintiff] suffered a neurological injury, § 3135 requires that the affidavit must contain testimony that a plaintiff may have sustained a serious neurological injury.... Because there is nothing in Dr. Lerner's affidavit, either literally or substantively, to indicate the degree of injury, we find that it was not sufficient to satisfy the threshold requirement of §3135."
Even though the Court of Appeals affirmed the trial court's ruling regarding the insufficiency of plaintiff s closed head injury affidavit, the Court of Appeals remanded the case back to the trial court because the trial judge had not made any findings as to whether plaintiffs closed head injury claim presented a sufficient material factual dispute entitling plaintiff to jury trial as would be the case with any other bodily injury. In this regard, the Court of Appeals specifically held that the closed head injury exception contained in section 3135(2)(a)(ii) does not provide the exclusive manner in which a closed head injury case can go to a jury for determination. On the contrary, a closed head injury claim that otherwise raises a material factual dispute as to nature and extent of injury is entitled to jury trial in the same manner as any other type of injury. In so holding, the Court of Appeals stated in pertinent part:
"The language of § 3135 does not indicate, however, that the closed-head injury exception provides the exclusive manner in which a plaintiff who has suffered a closed-head injury may establish a factual dispute precluding summary disposition. In the absence of an affidavit that satisfies the closed-head injury exception, a plaintiff may establish a factual question under the broader language set forth in § 3135(2)(a)(i) and (it), which, as noted above, provide that whether an injured person has suffered serious impairment of body function is a question for the court unless the court finds that 'there is no factual dispute concerning the nature and extent of the person's injuries,' or, if the court finds that there is such a factual dispute, that 'dispute is not material to the determination as to whether the person has suffered a serious impairment of body function.' This Court has recently held that a trial court cannot determine whether a plaintiff has suffered a serious impairment of body function and enter judgment in favor of defendant as a matter of law without first making the factual findings required under §§ 3135(2)(a)(i) or (ii) [citing May v Sommerfield]. Because the trial court in this case did not make the required findings, we cannot decide the merits of this issue on appeal and must remand for further proceedings."
The court instructed the trial court to file its findings regarding the summary disposition issue within 56 days and retained jurisdiction.
Judge Cavanagh concurred in part and dissented in part. He concurred with the decision to remand but would have found that the medical affidavit submitted by plaintiff was sufficient to satisfy the threshold requirements of the closed head injury provisions of section 3135.
