Do I Have a Case for Pain and Suffering?

Do I Have a Case for Pain and Suffering?

Whenever an individual is injured in a motor vehicle accident, there are two major items that need to be established before a bodily injury or pain and suffering claim in Michigan can be properly resolved.  These are 1) negligence (i.e. the other party is at fault in the accident), 2) a serious impairment of important bodily function.

MCL 500.3135(1). Serious impairment of body function is defined 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). An auto accident victim has met the statutory threshold if he or she has suffered (1) death, (2) permanent serious disfigurement, or (3) serious impairment of body function. Id.

According to the McCormick case, which has been codified after the recent amendment to the no fault act, the statutory language provides three prongs that are necessary to establish a “serious impairment of body function”: (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Ok, so what does all that mean?

1) Negligence:  Simply put it means that first we have toprove the other guy is at fault.  This is a simple matter if they admit fault, but if some claims they had a green light, or that you were speeding, this can complicate the matter significantly.  Any evidence supporting that the other person is at fault is helpful.  This could include dash cam video, videos from nearby businesses, pictures of the damage to the vehicle, and alsowitnesses.  If nothing else, if you can get one or two bystanders who witnessed the accident to tell the police officer that you had the green light, you will be in a much better chance to prove negligence on behalf of the other party.

2) Threshold:  Simply put it means you have to have serious injuries.  If you have major permanent scars or burns in visible locations, such as the face, neck, and hands, this will satisfy the requirements.  Or alternatively, you could instead have a serious impairment.  A serious impairment requires three elements, but in simple terms requires that your life was affected by injuries to something of importance to you and that you have some objective evidence that there was an injury.  This means that you need more than just saying you are injured; frequently, it means you will need something like a an MRI, x-ray, CT scan or other diagnostic test where a doctor can look at the image and say “yes, there’s a problem.”  If you can then show that the problem impacts your life and changes how you live it, you probably have a case for bodily injury or pain and suffering damages.  It’s worth noting here that psychological problems can also develop from a motor vehicle accident and the head is arguably the most important part of your body, so people who suffer from traumatic brain injuries can certainly be eligible for significant damages.  

Finally, its also worth pointing out that the worse your injury is and the clearer the negligence and evidence of that injury, the better one’s case will be.  Someone who lost a leg will likely have a larger case than someone who drove home after their accident and someone who recovered after just a month will very likely have a much smaller case than someone who will be disabled for the rest of their life.  With that said, even small injuries could still have significant value if they have a major impact on a person’s life.

John T. Schroder

Attorney at Law

Law Offices of Joumana Kayrouz