In most Florida car accident cases, you need a permanent injury in order to be entitled to get money for pain and suffering.
I say “most” because in some Florida car accident claims, you don’t need a permanent injury in order to get compensation for pain and suffering.
For purposes of the article, you can substitute the word “truck” for car and vice versa.
Florida’s law that creates the permanent injury requirement in order to get money for pain and suffering in most Florida auto accident cases says:
“In order to recover damages in tort against the owner or operator of a motor vehicle (with respect to which security has been provided as required by Florida Statutes ss. 627.730– 670.7405), the plaintiff may recover damages for pain, suffering, mental anguish, and inconvenience because of bodily injury, only if the injury consists of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
Driver Must Be Negligent in Order To Get Money for Pain and Suffering
In order to even get one penny for pain and suffering in an accident, a driver’s negligence must have caused your injury. There are other parties that you may be able to sue but 95% or more of car crash cases are the result of a careless driver.
Most Auto Accidents Require a Permanent Injury to Get Pain and Suffering Compensation
Non-economic damages are compensation for pain, suffering, mental anguish, and inconvenience. To keep it simple, when I use the term “pain and suffering”, assume that I’m talking about all of these types of non-economic damages.
In most Florida motor vehicle accidents you need a permanent injury or one of the other injuries listed above in “a” through “c” in order to get money for pain and suffering.
The requirement that you must have a permanent injury in most Florida car accident cases in order to get a payout for pain and suffering is called the tort threshold.
However, you don’t have to have a permanent injury in every type of motor vehicle accident case in order to get paid for your pain and suffering.
Whether you can get paid for pain and suffering in a Florida auto accident case may depend, in part, on the particular types of vehicles involved in the wreck.
Specifically, it may depend upon whether:
- you were occupying a “motor vehicle” when the crash occurred; and/or
- the careless driver was driving a “motor vehicle” at the time of the wreck
I used the term “motor vehicle” but I’m referring to a “motor vehicle to which security has been provided as required by ss. 627.730–627.7405? The definition of “motor vehicle” may not be what you think it is.
Who Doesn’t Need a Permanent Injury to Get Money for Pain and Suffering
You never need a permanent injury to get compensation for pain and suffering if at the time of a Florida crash you were occupying a:
- Motorcycle
- Moped (Depends on Size)
- Taxicab
- Mobile Home
- Government-owned vehicle used for 5 or more passengers (mass transit) (e.g. Miami-Dade county public bus)
- Farm Tractor or Farm Trailer (subjecting to licensing exception)
- Vehicles used only on private property
- Dune Buggies, Go-Carts, recreational vehicles that are not used on roads
- Golf Carts
- Off-road construction machines (rollers, graders, bulldozers)
- Vehicles on tracts (e.g. railroad)
- Car, and you’re a nonresident whose home state doesn’t have a no-fault law, and you’re hit by an uninsured driver.
- You were a nonresident pedestrian hit by a vehicle and you don’t live in a No-fault state.
What Injury Most Often Gets You Money for Pain and Suffering?
The most common injury that meets the tort threshold requirement is “a permanent injury within a reasonable degree of medical probability.”
What is considered a “permanent injury within a reasonable degree of medical probability” in a Florida car accident?
F.S. 627.737(2) does not define “permanent injury within a reasonable degree of medical probability.” It is established by medical expert testimony. Morey v. Harper, 541 So.2d 1285 (Fla. 1st DCA 1989); Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984); Horowitz v. American Motorist Insurance Co., 343 So.2d 1305 (Fla. 2d DCA 1977); see Bohannon v. Thomas, 592 So.2d 1246 (Fla. 4th DCA 1992); City of Tampa v. Long, 638 So.2d 35 (Fla. 1994).
Your treating doctor is the best person to say that you have a permanent injury. This is one of the reasons that it is important to have a treating doctor who won’t kill your case.
In a Florida car accident case, a medical expert is allowed to explain (to the jury) the meaning of the term “permanent injury within a reasonable degree of medical probability.”
If your Florida auto accident requires that you have a permanent injury in order to get pain and suffering damages, then a jury is allowed to award you damages for pain and suffering if a medical expert says that you have a “permanent injury within a reasonable degree of medical probability.” Rivero v. Mansfield, 584 So.2d 1012 (Fla. 3d DCA 1991), quashed in part, approved in part, 620 So.2d 987; see Philon v. Reid, 602 So.2d 648 (Fla. 2d DCA 1992). But see Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So.2d 1092 (Fla. 1994).
Is a Chiropractor Allowed to Testify That a Person Has a Permanent Injury Under the No-Fault Insurance Law?
Yes. Horowitz v. American Motorist Insurance Co., 343 So.2d 1305 (Fla. 2d DCA 1977).
This isn’t my case. In Horowitz, an appeals court ruled that a chiropractor can testify within reasonable medical probability that a person has sustained permanent injuries within the purview of the Florida No-Fault law.
Horowitz was first seen by Dr. Dorto (a chiropractor) three days after the accident occurred. He complained of injuries in his neck and lower back. After examining him and taking x-rays, Dr. Dorto concluded that Horowitz’ problem was between the two disc spaces causing pressure on two nerves.
Dr. Dorto saw Horowitz on twenty-six separate office visits. Dr. Dorto testified that he checked Horowitz’ posture, range of motion, and his spine and nerve system. He also took his blood pressure and pulse, checked his heart and lungs, checked the nerve sensation in his legs and arms, the reflexes in his upper and lower extremities and checked out his muscle strength and the diameter of muscles in the upper and lower extremity.
Dr. Dorto testified that the tests he conducted indicated injury to muscle and nerve with the limitation in the range of motion in the lumbosacral spine. He found a lack of sensation in the left lower leg and tenderness at the base of the plaintiff’s spine.
Also, he noted muscle spasms of the left trapezius muscle next to the neck and shoulder, as well as under the skull. He treated his patient with physical therapy, traction, diathermy, ultra-sound to massage the nerves and reduce swelling, internal management by vitamins and minerals and adjustments to the spine.
Dr. Dorto testified that because of the restricted range of motion in his lumbosacral spine and the lack of nerve feeling in the outside of his right leg, Horowitz would not have a complete recovery.
He attributed this to Horowitz’ automobile accident.
On the other hand, a chiropractor can testify that you will need surgery in the future.
Insurance Company Gets to Hire Its Own Doctor
If you sue a careless driver for a Florida car collision, his or her insurance company may have your medical records reviewed by a medical expert of their choosing.
Tip: Give your medical records to the claims adjuster as soon as possible so that they can set the appropriate reserve. This may increase the likelihood that your case settles sooner.
Insurance Company Doctor Usually Says Your Injury Isn’t Permanent
After settling hundreds of Florida car accident cases, I’ve found that in the far majority of cases, the insurance company’s doctor says that your injury is not permanent. This decreases the full value of the injury claim and may result in a smaller settlement.
It comes down to which doctor a jury will believe: yours or the insurance company doctor.
Insurance Company Doctor Usually Says Soft Tissue and Disc Injuries Aren’t Permanent
In cases where the injury is soft tissue, a bulging disc, or a herniated disc, the defense doctor usually says that the injury is not permanent.
If you have a bigger injury such as a femur fracture, tibial plateau fracture with multiple surgeries, a bad wrist fracture, then there is a much better chance that the insurance company doctor will say that your injury is not permanent.
Miscarriage is Usually Not a Permanent Injury
In Florida, the loss of a fetus does not meet the threshold requirement if the doctor does not testify that the loss of the fetus caused either the loss of an important bodily function or caused the mother any permanent injury within any reasonable degree of medical probability. Styles v. Y.D. Taxi Corp., 426 So.2d 1144 (Fla. 3d DCA 1983)
The loss of the fetus is not covered by the Florida Wrongful Death Statute, Stern v. Miller, 348 So.2d 303 (Fla. 1977). If the mother has objective signs of injury resulting from the loss of the fetus, she may be able to recover damages from the loss of the fetus.
Objective signs of injury are things that the doctor can see or measure.
Permanent Injury Isn’t Required to Get You Other Compensation
You don’t need a permanent injury in order to recover compensation that isn’t excluded from F.S. 627.737. The types of compensation that you don’t need a permanent injury to qualify for in a car accident are:
- Diminished Value of Your Vehicle
- Rental Car
- Past Lost Income
- Future lost income reduced to present value
- Past medical expenses
- Future medical expenses
- Replacement value of lost personal property (e.g. damage to your car, broken glasses, watch, etc.)
- Funeral expenses
- Reimbursement for mileage to and from medical appointments
- Punitive Damages (in rare cases)
This is stated in F.S. 627.737(2) (1991); Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla. 1995).
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