This is particularly true where the case involves an “invisible injury,” such as hearing loss or tinnitus. A recent published decision by the Michigan Court of Appeals addresses the evidence needed to show – or at least raise a question of fact regarding – whether the plaintiff suffered an “objectively manifested impairment” that was caused by the accident.
The plaintiff in Patrick v Turkelson was driving her car when another vehicle, in the process of making a turn, struck her driver’s side. Multiple airbags deployed, hitting the left side of her face, left ear and the top of her head. She reported to first responders that sound in both ears was muffled and her left ear was ringing. In the emergency room, she complained of sharp left ear pain, ringing in both ears and headache.
Subsequently, plaintiff presented to an audiologist with complaints of sudden decrease in hearing and bilateral tinnitus (the subjective perception of noise or ringing in the ears), which is not a medical condition itself but rather a symptom of an underlying condition. Testing revealed her hearing levels to be within normal limits, although no prior tests for comparison were available. The audiologist told plaintiff that the airbag explosion had caused the ringing in her ears.
Plaintiff then saw a doctor specializing in neurological disorders of the ear. Physical examination of her ears, nose, oral cavity and cranial nerve function was all normal. She also had an audiogram test, which involves both a subjective component, in that the patient reports what they hear, and an objective component in measuring eardrum movement and acoustic reflexes. The audiogram results suggested plaintiff had mild sensorineural hearing loss, which is generally due to problems with the inner ear or nerve, as well as an acoustic reflex abnormality, which may or may not be symptomatic and may or may not have been correlated to plaintiff’s condition.
Defendant moved for summary disposition on the basis that plaintiff failed to meet the threshold for demonstrating that she suffered a “serious impairment of body function,” as required for a finding of liability for non-economic loss arising from a motor vehicle accident under McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010). Specifically, defendant argued that (1) plaintiff did not show an objective manifestation of her subjective complaints of tinnitus, (2) her hearing loss was “mild” and was not a physical basis for tinnitus, and (3) there was no indication that her general ability to live her normal life was affected by her mild hearing loss. The trial court granted defendant’s motion and dismissed plaintiff’s claims.
However, the ruling was reversed on appeal. The Court of Appeals disagreed with defendant’s main argument that plaintiff’s hearing loss was not an objectively manifested impairment because the tests revealing her hearing loss were dependent on her subjective verifications, and since her treating doctor testified that tinnitus is a “phantom sound” which is “something that is inside your head that you hear, not from the environment.” Significantly, the Court instructed, “the fact that there exists a subjective component to the hearing test does not negate a finding that [plaintiff’s] hearing loss is an objectively manifested impairment.” Rather, the Court determined that her hearing impairment was “observable by others,” which satisfied the standard for showing an objectively manifested impairment under McCormick’s first prong, because:
- According to plaintiff’s husband, following the accident she had difficulty hearing adequately in everyday situations;
- Her husband testified that she had difficulty with speaking too softly or loudly, which made it hard for him to understand her;
- Her husband observed her experiencing frustration over her own lack of awareness about the volume of her voice; and
- Plaintiff’s treating doctors testified that she suffered hearing loss, and that tinnitus – although not possible to test for – is a symptom that is consistent with airbag explosions, as supported by the medical literature.
The Court concluded that this evidence sufficiently raised a question of fact for a jury as to whether plaintiff’s hearing was impaired, and whether her hearing loss symptoms “influenced her ability to live in her normal manner of living.” Accordingly, the Court of Appeals held that the trial court erred in granting defendant’s motion for summary disposition.
In addition, the Court examined defendant’s causation argument, which was not addressed by the trial court given its determination on the threshold injury issue. Specifically, Defendant argued that plaintiff failed to show that her ear injuries were proximately caused by the motor vehicle accident, which is a required showing in order to prove negligence. However, the Court found that plaintiff could make such a showing for a number of reasons:
First, Plaintiff testified that she began experiencing hearing problems immediately after the accident. Second, there was no audiogram from before the accident to indicate plaintiff’s pre-accident hearing capabilities. Finally, although Plaintiff’s treating doctor conceded that hearing loss can occur as part of the aging process, she testified that based on plaintiff’s audiogram results and reported history of immediate change in hearing after the accident, her hearing loss and tinnitus were caused by her exposure to the loud sound of the airbags deploying.
Based on this evidence, the Court reasoned that plaintiff could sufficiently show “cause in fact” since “a jury could reasonably conclude that, more likely than not, [plaintiff’s] hearing loss would not have occurred but for the car accident.” The Court also noted that because head injuries are a foreseeable result of car accidents, negligently causing a car accident may be considered a “legal cause” of hearing damage from the sound of airbags deploying, even if such an injury is not anticipated. Thus, the Court held that summary disposition could not have been granted on the issue of causation.
Patrick is instructive to plaintiffs and defendants alike. The decision provides plaintiffs with guidance on how to meet the burden of proof for injuries that are difficult to demonstrate through objective diagnostic testing. Though the “objectively manifested impairment” inquiry is one that can only be made on case-by-case basis, the Court of Appeals has clarified that, at the very least, the claimed impairment must be “observable or perceivable from actual symptoms or conditions.” While the Court’s holding may be interpreted to aid plaintiffs in the survival of nebulous claims, it also implies that defendants may be successful in obtaining summary disposition in such cases when plaintiffs are unable to produce witnesses to their claimed impairment, or where the witnesses prove unable to articulate the manner in which the symptoms or conditions are observable or perceivable. Defendants and insurers should fully explore these nuanced issues during discovery, and as always should remain abreast of all legal developments on this ever-evolving topic.