Michigan’s no-fault insurance act requires a claimant to demonstrate a “threshold” injury to recover noneconomic damages in a tort claim against the driver or owner of the at-fault motor vehicle. See e.g. MCL 500.3135(1) and McCormick v Carrier, 487 Mich 180 (2010). Specifically, a plaintiff injured in an automobile accident may recover noneconomic losses only if he or she has suffered death, serious impairment of body function, or permanent serious disfigurement. The no-fault act defines serious impairment of body function as an “objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” MCL 500.3135(5). The no-fault statute provides a specific provision that applies for situations where the plaintiff sustained a closed head injury. MCL 500.3135(2)(a)(ii) provides that “for a closed head injury, a question of fact for the jury is created if 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.”
In a recent case, the court of appeals held that an affidavit from an oncologist that did not attest that he “regularly diagnoses or treats closed head injuries” was insufficient to establish a genuine issue of material fact about whether the claimant had sustained a “threshold” injury under the special closed head injury provision of the No Fault Act. The court reasoned that the statute required evidence that the allopathic or osteopathic physician regularly diagnoses or treats closed head injuries and since the affidavit from the oncologist in this case did not satisfy that requirement, it was not sufficient under the statutory provision for closed head injuries. The case is Seabolt v Caparaotta, unpublished Michigan Court of Appeals case 327095, decided August 11, 2016.
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