Author(s): Gregory A. Light

COURT OF APPEALS FINDS ACTUAL HOSPITAL BILL NOT REQUIRED TO SHOW AN ALLOWABLE EXPENSE UNDER MCL 500.3107(1)(a)

MENTAL, EMOTIONAL, OR PSYCHIATRIC INJURIES STILL QUALIFY AS A BODILY INJURY

The Court of Appeals in the case of James v AAA, an unpublished opinion issued July 28, 2009 (Docket No. 284277), affirmed the District Court’s directed verdict in favor of Defendant regarding an expense that had not been incurred, affirmed the Circuit Court’s reversal of the District Court’s decision regarding treatment for a closed head injury and related attendant care expenses, and remanded the case to the District Court for further proceedings regarding this treatment.

The Plaintiff’s claim for no-fault benefits was assigned by the Assigned Claims Facility to AAA. The case proceeded to trial in the 36th District Court in Detroit, with a directed verdict granted in favor of the Defendant.

On appeal to the Circuit Court, it was argued whether or not Plaintiff’s failure to present the actual hospital bill for Plaintiff’s hospitalization was necessary to qualify as an allowable expense under the No-Fault Act. Rather than producing the actual hospital bill, Plaintiff introduced testimony that she was injured in a serious accident and hospitalized for three days, with the bills totaling approximately $23,000.00. The actual hospital records were entered into evidence. The Court of Appeals ruled this was sufficient proof to permit a jury to find that Plaintiff received care and treatment at the subject hospital that was reasonable and reasonably necessary for her care, recovery, or rehabilitation.

However, the directed verdict by the District Court was ultimately upheld because Plaintiff further admitted in her testimony that the hospital charges had been discharged in her bankruptcy filing. Accordingly, the charge had not been incurred within the meaning of §3107(1)(a), such that there was no legal responsibility for Plaintiff to pay. Duckworth v Continental Nat’l Indemnity Co, 268 Mich App 129, 134 (2005).

As an aside, GLM’s own Daniel Saylor handled the appeal and pointed out that Plaintiff’s counsel actually had the hospital bill in his possession, but refused to submit it into evidence. The district court judge who presided over the trial was so angered by Plaintiff’s counsel’s refusal to submit the actual hospital bill, she granted Defendant’s directed verdict on this issue and the remaining issue. Plaintiff appealed the decision to the Circuit Court. The Circuit Court reversed the directed verdict and remanded the case for a new trial, but with a different judge. Plaintiff presented no support for his claim that the case should be transferred to a different judge on remand, other than his feelings that the judge who heard the case was unfair. The case was assigned to a new judge. On appeal, the Court of Appeals did not have to decide this particular issue as the district court judge who tried the case voluntarily disqualified herself from hearing any case with this particular Plaintiff’s attorney.

The last issue that was decided by the Court of Appeals is quite interesting and is often seen in these No-Fault cases. Following the accident, Plaintiff was treated by psychologist, Dr. Allen Cushingberry, who testified Plaintiff’s injury was consistent with a closed head injury and further that he believed she was suffering from Post Traumatic Stress Disorder. To corroborate Dr. Cushingberry’s testimony, Plaintiff’s sister testified that Plaintiff became depressed and experienced behavioral changes after the accident. As such, Dr. Cushingberry disabled Plaintiff and prescribed 24 hour attendant care.

Defendant argued there was no competent, objective evidence presented showing that this was a bodily injury attributable to and sustained in the subject automobile accident. Furthermore, it was argued that mental, emotional and psychiatric injuries are not, by definition, bodily injuries.

At the time of oral arguments, Mr. Saylor relied heavily on the recently published Michigan Court of Appeals decision of Allen v Bloomfield Hills School District, 281 Mich App 49 (2008),

wherein the Court found that Plaintiff presented sufficient evidence to create a genuine issue of material fact concerning whether he sustained a bodily injury because a physician who reviewed a brain scan stated it depicted decreases in frontal and subcortical activity consistent with depression and PTSD and further that the abnormalities in Plaintiff’s brain were consistent with an injury to the brain. Moreover, another physician stated that PTSD causes significant changes in brain chemistry, brain function and brain structure such that the Court believed the testimony of these two physicians was sufficient to present a claim of brain injury to the jury.

In contrast to the instant case, there was no medically objective tests to show any change in Plaintiff’s brain, or even a medical doctor who claimed Plaintiff sustained a brain injury. The only evidence came from a psychologist who testified Plaintiff’s injury was consistent with a closed head injury and he postulated therefrom that she suffered from PTSD. The only other corroborating testimony was from Plaintiff’s sister who indicated the plaintiff became depressed and experienced behavioral changes after the accident, which could have been from any other number of causes and reasons.

Nevertheless, the Court of Appeals ruled that when the evidence was viewed most favorably to Plaintiff, this was sufficient to establish a genuine issue with regard to whether a Plaintiff sustained a bodily injury in this regard and therefore affirmed the Circuit Court’s reversal of the District Court’s directed verdict as to this issue.

The Allen case, supra, is one that should be reviewed and argued in all cases where there is a tangent claim for TBI, or closed head injury. My thanks to Mr. Daniel Saylor for his input and insight into this case.