People assume that in an accident if they have pain and if they suffer, they are entitled to pain and suffering when involved in an accident in Florida. This is one of the more common questions that we get at the law firm. Generally, in Florida, in order to recover pain and suffering in a car accident you must prove: 1) death, 2) significant scarring 3) permanent disfigurement or 4) permanent injury. Most people believe the important issues are how the accident happened and how much medical bills and treatment in the case. While these are also important issues, another critical issue in an automobile accident case is whether the claimant suffered a permanent injury within a reasonable degree of medical probability.
In 1973, the Florida Legislature passed the comprehensive Motor Vehicle Act and created Personal Injury Protection (PIP) insurance, making such coverage mandatory in Florida. PIP coverage provides their insureds with medical and employment disability insurance coverage for any injuries caused by a car crash, whether significant or not, and regardless of fault. The concept of providing insureds with easy access to medical coverage following accidents was designed to reduce liability claims for minor injury accidents.
This PIP requirement came with a trade-off, however, which is found in Florida Statutes, which states:
(2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
Under this law, if a claimant is able to show that the other vehicle was at fault and caused the plaintiff’s injuries, they will be able to recover any out of pocket medical bills incurred (the monies owing after the PIP pays; usually PIP pays at 80 percent), any future medical bills, any lost wages, the loss of ability to earn money in the future, as well as any other out-of-pocket expenses legally shown.
The primary limitation of the law is that pain and suffering can only be recovered if the injured person can prove death, significant scarring, permanent disfigurement or permanent injury. Death, significant scarring and permanent disfigurement findings are obviously rare, so the most common way to seek pain and suffering damages in a car accident case is by a showing of permanent injury. Indeed, in the industry, the permanent injury finding is called the permanent injury threshold, as unless the injured person breaches the permanent injury threshold, they are not entitled to pain and suffering. Said another way, if the injured person has pain and suffers due to the negligence of another in a car accident, but the injury is not permanent, they cannot recover monies for the pain and suffering.
What is a permanent injury? Obviously, it is an injury that is permanent but there must be more to it. In court, a permanent injury is generally proven by expert testimony of the treating doctor or doctors. If the treating doctor testifies to a permanent injury, then the plaintiff has made a prima facie case for pain and suffering but this could be rebutted by an expert for the defense. In litigation, the defense lawyers are entitled to sending the injured person to a physician of their choice for a compulsory medical examination. That doctor would render a decision of whether he or she believes the injured victim has a permanent injury. If the treating doctor finds a permanent injury and the defense doctor finds that there is no permanent injury then, the jury ultimately would have to decide that issue, and they would only be allowed to award pain and suffering if they find that the injury is permanent.
Every case is different and must be judged on its merits. It is a good start to get a complementary consultation regarding an accident case in case this happens to you. The advice contained in this blog is intended to be of general matter and not as to a specific situation. Please call a licensed Florida attorney, like the lawyer at Drucker Law Offices, to determine if and how Florida law applies to your case. (561) 489 – 9199
