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 4) significant or permanent loss of an important bodily function or 5) 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. There are some exceptions in car accidents where you do not have to prove permanent injury in a car accident (or death, significant and permanent scarring, permanent disfigurement). You should consult an attorney pertaining to the proof required in your case. See section 627.737 (1)
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.
627.737 Tort exemption; limitation on right to damages; punitive damages.—(1) Every 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, and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730–627.7405, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).(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.
