The answer is maybe.
It’s no secret that surgery is the biggest value driver to a personal injury case. Out of my 16 biggest personal injury settlements, the injured person had surgery in 15 of them.
Sure, I was able to get a $260,000 settlement for an Uber driver who had a back injury but didn’t have surgery. You can see a video about that settlement here:
However, that $260,000 settlement (without surgery) is the exception to the rule.
An injured person should never get surgery just so that he or she can try to get a bigger settlement.
First off, surgery has its risks such as infection or death. Additionally, the injured person should be honest and not try to game the system.
I am going to share situations where surgery is likely to get the injured person more money. I’ll also discuss common instances where surgery may not lead to more compensation.
That’s not all…
I’ll also talk about when surgery can actually decrease the injured person’s share of the settlement.
There is no guarantee that you get any money in your personal injury case. This is because even with surgery, there are many factors that affect the value of an injury case.
Surgery may increase the amount of money (net settlement after attorney’s fees, costs, medical bills and liens are paid) that you get.
You may get a bigger net settlement, if you had surgery and liability is clear.
Clear liability means that the person or company that caused your accident was 100% at fault.
The most common accident where you may have clear liability is if you are hit from behind while driving a car or other motor vehicle.
Back Surgery and Clear Liability in Rear End Crash Leads to $100,000 Settlement
Keith is stopped at a red traffic light. He is rear ended by another driver.
The other driver doesn’t blame Keith for causing the crash.
Liability is clear because the other driver admitted that he was at fault. Additionally, the other driver didn’t place any blame on Joe for causing the accident.
The MRI revealed a herniated disc at L5-S1.
Here is an image of the herniated disc.
Below is a side view of the herniated disc.
Shortly thereafter, he had lower back surgery (a hemilaminotomy and discectomy).
The other driver had a $100,000 bodily injury liability (BIL).
State Farm paid us $100,000 to settle. Why did they pay the $100,000 limits?
Because their driver was clearly at fault, and Keith had surgery. Watch Keith talk about his surgery and the settlement.
You May Get More $ if Injury is 100% Caused by the Accident
If your injury is clearly related to the accident, then the insurance adjuster is not likely to argue this point. The most common example of an injury being related to the accident is if you have a fracture (broken bone).
With most fractures, it’s difficult for an adjuster to argue that the accident didn’t cause the fracture.
You May Get More Money if There is Enough Insurance to Pay Your Claim
The person or company who caused your accident may have liability insurance that will pay for your injury case, if you have surgery. If so, your payout may be greater if you have surgery.
When Will There Be Enough Insurance To Pay the Fair Value of a Surgery Case?
There are a few situations where it is virtually certain that there will be enough liability insurance to pay for the fair settlement value of the case where the injury requires surgery. Some examples include when a person’s surgery was due to the negligence of:
- An Uber or Lyft driver if that driver was engaged in a ride
- Another driver if the victim was a passenger in a Lyft or Uber
- Someone making a delivery for Ubereats, Postmates, Amazon Flex, Grubhub, Doordash
- A driver who rented a car and purchased bodily injury liability insurance
- Someone who is driving a truck or bus for a big company like Walmart, Target, Disney or Publix
- Someone who rented a car from a car sharing service like Turo and selected the premium plan
- A Driver who rented a car from a Hyrecar (rideshare service).
There will likely be at least $1 million of liability insurance in the above situations. In most cases where the injured person has surgery, the case is still likely worth way under $1 million. This is true unless the injured person has several surgeries or develops are horrible infection.
However, there is likely no insurance coverage if the injured person was a passenger in the Ubereats or Postmates car. In other words, Ubereats or Postmates’ insurance won’t cover the injured person if the he or she was a passenger of the same car as the delivery driver.
If a large truck (10,000 pounds or more) is used in interstate commerce, it is required to have minimum limits of $750,000.
Will you get a bigger settlement if the driver who caused your (need for) surgery was driving for Uber, Lyft one of the above delivery services as opposed to someone driving a car for pleasure (and who is insured with GEICO or USAA)?
All things equal, the settlement will be much bigger. This assumes that the at fault driver was engaged in a ride, or making an active delivery.
Unfortunately for injured accident victims, insurance companies like GEICO, USAA and State Farm usually sell insurance policies with lower liability limits.
Aside from the liable party having liability insurance, there are many companies that are likely self-insured. Thus, they have enough money to pay for someone’s surgery if their negligence caused it.
Example of Enough Insurance Resulting in Bigger Settlement
I’ll use an example from one of my past cases where surgery got my client more money.
Maria (not real name) is stopped at a red traffic light. She is rear ended by Peter (not real name).
I have no reason to believe that Peter denied that he was at fault. Thus, liability was clear.
As a result of the crash, Maria has lower back pain and gets treatment with a doctor and later gets an MRI. The MRI reveals a herniated disc.
I am not aware of any prior complaints of back pain that Maria had before the accident.
Her doctor recommended back surgery, in particular a discectomy. She had the surgery.
Careless Driver Had $100K in BIL Insurance
As an average, jury verdicts for the full value for pain and suffering component of a herniated disc in South Florida are between $25,000 and $50,000.
Maria’s out of pocket (OOP) medical bills are $5,000 and she has $300 in lost wages. I’ll use $30,000 as a fair settlement value for the pain and suffering component of the case.
Peter was at fault and we’ll assume the accident caused Maria’s injuries. Thus, Liberty Mutual should pay for Maria’s economic damages (medical bills, lost wages, etc.) and non-economic damages (pain, suffering, etc.)
Using Settlement Formula Case May Be Worth $35,300 Without Surgery
The formula to be used to calculate the settlement value of Maria’s case is:
Settlement = OOP Medical bills + Lost Wages + Pain and Suffering
Let’s plug in the numbers from the above example:
Settlement = $5,000 + $300 + $30,000
Settlement = $35,300
Liberty Mutual Offered $4,500; Their Reasons (Age, Etc.)
Now, in the case I had Liberty Mutual initially offered $4,500 or so which is a fraction of $35,300.
Why? There could be many reasons:
• It was their opening offer and many cases involve negotiation.
• The claimant was in a car when the crash happened. The tortfeasor driver was driving a truck in Florida. Thus, the claimant needs a permanent injury in order to get non-economic damages (pain, suffering, etc.).
In most Florida auto accident cases, you need a permanent injury in order to get money for pain and suffering. Find out if you can get non-economic damages (e.g. pain and suffering damages, etc.) in a Florida auto accident case.
You should note that in a slip and fall case and many other types of non-motor vehicle cases in Florida, you don’t need a permanent injury in order to be entitled to money for pain and suffering.
• Maria was 40 years old or so. Most doctors will say that a good deal of people who are 40 years old have herniated disc even if they don’t know.
Now, if a Plaintiff is asymptomatic (has no symptoms), he or she may still be able to get money for pain and suffering if the injury is aggravated by the accident.
I Didn’t Make a Counter Offer
I did not make a counter offer to Liberty Mutual’s initial offer of $4,500 so I will never know what their highest offer would have been prior to my client having surgery.
Liberty Mutual and many other personal auto insurers sell auto insurance in Florida. I don’t believe that these insurers will offer $100,000 (or even close to it) for this case without surgery.
My client had back surgery. Liberty Mutual then paid the $100,000 BI liability limits. This is a case when having surgery increased my client’s settlement.
Why Surgery Increased Maria’s Settlement
This was partly because:
• Liability was clear.
• Maria’s injury was caused by the accident. (The above example wasn’t the best fact pattern of an injury that is clearly caused by an accident. I used it because the most common cases from my experience where client’s debate having surgery arise from back injuries, neck injuries and/or shoulder injuries.)
• In this case there was enough liability insurance ($100,000) to pay the increased medical bills that come from having surgery.
When Surgery Might Result in Lower Net Settlement
Below is a situation where you may get less money by having surgery.
Assume the same example as above except that Peter’s BI liability limits were $10,000, $20,000 or $25,000.
Maria will likely get less money because the bills from surgery are greater than the extra money that she may have received if she had surgery.
Basically, Peter may have had insufficient insurance to pay for Maria’s damages.
Assume the above example in #1 that Peter had no insurance, the insurance company denies coverage or the case is taken to trial and the result is a defense verdict.
Peter may be stuck with medical bills.
Surgery Recommendation May Help You Get Policy Limits if Case is Worth Close to Limits
Many insurance companies are used to seeing reports where the claimant’s doctor recommends spine surgery.
All things equal, a doctor’s recommendation for surgery helps a case more if the claimant’s damages are worth close to the responsible party’s bodily injury limits.
$100,000 Settlement Before Back Surgery Was Scheduled (Car Accident)
See a $100,000 settlement for a lady hit by a car in North Miami Beach. She said the crash worsened her pre-existing bulging discs and herniated discs.
Are Settlements Bigger If Claimant Has Surgery?
Other than wrongful death cases, the largest Florida accident settlements that I have had or seen generally have one factor in common: surgery.
However, as I stated above, there is no guarantee surgery will get you more money.
Let’s take a look at a few.
$445K Settlement for Surgery (Leg and Finger)
Here is a short video about this settlement.
A motorcycle rider was cruising down the street in Hialeah, Miami-Dade County. He was riding the motorcycle in the photo below.
A driver of an 18 wheeler (tractor trailer) was heading straight in the opposite direction.
The truck driver made a left turn, and crashed into the motorcyclist.
The driver of the tractor-trailer received a ticket for causing the crash. The citation was for failure to yield right of way.
As a result of the crash impact, the rider was thrown of motorcycle. The police report stated that rider going 5 mph over the speed limit.
Why does this matter?
A jury could find the motorcycle rider at fault for speeding. In turn, the truck driver’s insurance company could reduce its case value accordingly.
This could result in a smaller settlement.
What Injuries Did the Motorcycle Rider Have?
At the hospital, the doctor diagnosed the rider with a broken leg and finger.
Specifically, his leg injury was a fractured tibial plateau. Doctors performed surgery at the hospital.
How does surgery affect the settlement?
In particular, they did an open reduction internal fixation (ORIF) surgery on his leg.
A doctor also did ORIF surgery on non-dominant hand ring finger fracture. Hardware was subsequently removed from the distal (end) portion of his ring finger under local anesthesia. He owed medical bills of $52,000.00. Since he was on a motorcycle, he was not entitled to PIP insurance.
In Florida, medical bills are paid differently in car accidents than motorcycle wrecks.
He had surgery on each fracture. Surgery increased the value of a case.
While he was inpatient at Hialeah Hospital, the rider called our motorcycle accident law firm. Within hours of the phone call, Miami motorcycle accident lawyer Justin “JZ” Ziegler drove to meet with the injured rider at the hospital.
In fact, attorney Justin Ziegler took the photo (in the video thumbnail above) of the motorcyclist at that visit.
Although badly injured, the motorcycle rider was smart. He hired us at that hospital visit.
How Much Insurance Did the Truck Have?
Chartis Insurance insured the truck. The police report listed them.
Chartis is now AIG.
The good news?
Since Chartis is now AIG, I’ll call them AIG here.
I wrote a letter to AIG. In that letter, I asked them to tell me the insurance limits in writing. The insurance policy had a $1 million bodily injury liability limit.
Is that a good limit?
Yes. A nice aspect of truck accident cases is that big rigs often carry large insurance policies. In fact, they are required to.
Accident Reconstruct Expert Can Add Value to the Case
Evidence is important in motorcycle accident cases. Therefore, I paid about $2,500 to hire an accident reconstruction expert to inspect the tractor-trailer.
There are many benefits to hiring a motorcycle accident lawyer. One is that the attorney can pay the expert witness. The motorcycle rider doesn’t have to pay $2,500 to hire an expert witness.
If the attorney doesn’t reach a settlement, the injured rider doesn’t owe the attorney money. The same is true if the rider loses his case at trial.
If the attorney gets a settlement, he or she is paid back for the expert witness cost.
I wanted the expert to download the event data recorder from the tractor.
At the inspection, the expert took this photo of the tractor:
Did having an expert help the motorcycle riders’ case?
I think so. AIG knew that we were serious. AIG knew that I was gearing up to sue.
Was the Motorcycle Rider Entitled to Compensation for Being Unable to Work?
The motorcyclist was 33-year-old male, unemployed at time of accident. Prior to date of accident, the motorcyclist had worked various types of manual labor, sales jobs, and truck driving.
The orthopedic surgeon performed surgery on my client’s knee at the hospital, my client treated with him for a short period of time. I called the doctor’s office. The office manager told me that my client’s injuries were not permanent.
My client chose to switch his orthopedic surgeon to Jorge Cabrera, MD.
Doctor Cabrera was one of the many orthopedic doctors in Florida who would treat people who are injured in accidents. I spoke with Dr. Cabrera. I then sent him a questionnaire that had my questions and his answers.
Dr. Cabrera said that the rider would will need a knee replacement within the next 20 years.
Note: Some attorneys believe that a knee replacement is needed in 5-10 years. The orthopedic surgeon did not agree with this in this case.
The orthopedic surgeon said that the distal fracture of my client’s finger was not uniting (a non-union); however this did not really present a problem for the claimant.
Because the motorcycle rider was a “on again off again trucker and employee.”
I consulted with an independent orthopedic surgeon that I personally know. Fortunately, he didn’t charge me.
The doctor asked me for the x-ray from the hospital. He also wanted any x-rays that doctors did during surgery.
As a matter of practice, in most cases I get the x-ray, CT scan or MRI disc. I don’t settle for just getting the written report.
I want to see what the injury looks like. Moreover, I want the insurance company to be able to appreciate the injury’s seriousness. This can add value to the injury case.
Here is an x-ray of his lower leg after the surgery:
That doctor said:
he would anticipate him to have a good result with minimal limitation in activities and only a small, if any, permanent impairment. There may be further improvement in months to come.
As you can see, doctors can have a totally different opinion about the severity of someone’s injuries. Sometimes one doctor thinks an injury is permanent. Conversely, another doctor may think there is no need for future medical treatment.
How Much of the Settlement Was for Pain and Suffering?
The motorcycle rider’s medical expenses that he owed were about $52,000.00. Therefore, I assume that the insurance claims adjuster was paying $393,000.00 for pain and suffering.
If I’m correct, about 88% of the settlement was for pain and suffering. This makes sense. Pain and suffering is of often the largest part of a motorcycle accident settlement.
Future Medical expenses: The adjuster stated that he was not offering any money for future medical bills unless the motorcyclist was examined by a doctor chosen by their insurance company.
I argued that there was a lost wage claim and loss of future earning capacity claim. However, AIG rejected my argument.
It was my position that the truck driver was liable for violating the motorcyclist’s right of way.
AIG’s insurance adjuster argued that motorcyclist was also at fault. His basis was that the police report. Again, it said he was going 35 mph when the speed limit was 30 mph.
The case settled for $445,000 before a lawsuit. We settled about 3 months after the motorcycle rider was at Maximum Medical Improvement (MMI). This case settled quickly.
All things, equal motorcycle accident settlements tend to be higher than car accident cases.
Because the injuries tend to be bigger. This case is the perfect example. Most car accidents don’t result in two surgeries.
Do motorcycle accident settlements tend to be bigger?
Yes, all things equal. This is because the rider doesn’t need a permanent injury to get compensation for pain and suffering.
Pedestrian Gets $325K (Leg Surgery from Car Accident)
He had surgery, specifically a rod and screws were put in his tibia.
My actual case: $325,000 Settlement. My client had a rod put in her humerus (upper arm). She had some nerve damage. I was co-counsel.
Driver Gets $300K Settlement for Surgery After Car Crash
Mike (not our client’s real name) was driving a car in Florida. He was hit by another car.
Mike suffered a fracture and had surgery. The responsible insurance companies paid $300,000 to settle his personal injury case.
I represented Mike.
$300,000 Settlement for Skin Grafts to Leg: Slip & Fall at Store
See a case where a shopper got a $300,000 settlement for 2 skin grafts (surgery) on his leg, and a herniated disc from slip & fall on at Miami supermarket.
Crum and Forster insured the Miami supermarket.
Crum & Forster has an excellent reputation for paying Florida injury claims.
$210,000 Settlement for Shoulder Surgery from Truck Accident
$200K Settlement for Hand Surgery from Car Accident (Miami)
A woman was driving her car in Miami, Florida. Another driver ran a red light and crashed into her car.
An ambulance took her to the hospital. There, she was diagnosed with a broken wrist.
She only spoke Spanish. However, I speak some Spanish. My paralegal is fluent in Spanish.
Shortly after the accident, she hired me as her personal injury attorney. Thereafter, doctors put a plate and screws into her wrist.
What makes this even better?
I still stay in touch with this client. She is very sweet and grateful.
Car Occupant Gets $150,000 for Back Surgery from Car Wreck
What is the average verdict for pain and suffering of a single level spinal fusion?
For Florida personal injury cases, it is between $250,000 to $350,000. However, the pain and suffering value could be higher.
Keep in mind that this amount doesn’t include medical bills and lost wages. Those are additional.
For example, assume someone else’s negligence caused Mike to have a one level fusion lumbar (back) or cervical (neck) fusion surgery.
The fusion surgery is a success. Mike treats in total for 10 months.
Past Florida jury verdicts for this scenario put the value of a pain and suffering for Mike’s accident between $250,000 to $300,000. Some Florida personal injury lawyers may value the pain and suffering at a little higher than $300,000 in Mike’s case.
However, $350,000 would generally be upper limit on the pain and suffering component in Mike’s personal injury case.
What Factors Increase Pain and Suffering Values for a Spinal Fusion Surgery?
The following factors would increase the pain and suffering settlement amount of a spinal fusion surgery:
- More than one level is fused.
- The surgery wasn’t successful.
- The injured person treated much more than 10 months or so.
An example of a causation issue would be if the vehicles involved in the accident had little or no damage to them.
Passenger in Car Crash Gets $135,000 Settlement for Hand Surgery
The car crash was in Miami-Dade County, Florida. I represented the passenger.
Carnival Cruise Ship Passenger Gets $2,936,368 for 6 Knee Surgeries
This is not my case. Learn why a cruise passenger was awarded $2,936,368 from her slip and fall on a slippery deck on the Carnival Pride ship.
She fractured her patella (kneecap) and had 6 surgeries in total. Learn more about Carnival Cruise Line slip and fall accident claims.
Court OKs $4.5 Million Verdict for Skull Fracture and Surgery
This is not my case. In Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003), a court approved a $4.5 million dollar jury verdict for pain and suffering for a a severe skull fracture that required surgery to remove bone fragments from a man’s brain.
A man claimed that a bar in a Miami Beach hotel didn’t have enough security and it caused him to hit by a bottle.
Jury Awards $685,800 for Neck Fusion Surgery in State Farm Uninsured Motorist Case
This isn’t my case. In State Farm Mutual Automobile Insurance Company v. Harmon, Fla: Dist. Court of Appeals, 5th Dist. 2018, Brenda Harmon sued State Farm.
She sued for underinsured motorist benefits following her collision with an underinsured driver. The driver who caused the crash didn’t have enough insurance to pay for Harmon’s injuries.
State Farm admitted that the fault driver was negligent. However, State Farm argued that the accident didn’t cause Harmon’s injuries.
Specifically, State Farm argued that the accident did not cause her 2015 cervical fusion surgery. (Again, “cervical” means neck.)
Thus, I assume that Harmon’s primary injury was the neck fusion surgery that she claimed that the accident caused.
The rod in the image above is a type of rod that is inserted during a cervical fusion surgery.
State Farm also argued that the damages were smaller than Harmon claimed. At the time of trial, Harmon was expected to live another 18 years.
The jury awarded Ms. Harmon $685,800. The breakdown is:
- $158,000 for past medical expenses
- $100,000 for future medical expenses
- $100,000 for past pain and suffering
- $327,800 for future pain and suffering
If Harmon didn’t have this cervical surgery, the jury would’ve likely awarded her much less money for both past and future pain and suffering.
State Farm appealed the case. The appeals court agreed with all parts of the verdict, except for the jury’s award of $100,000 for future medical expenses.
Ms. Harmon presented the testimony of her treating physician, Dr. Frank R. Collier, M.D. to lay a foundation for an award of future medical expenses. Dr. Collier testified that Ms. Harmon would need certain care in the future, such as routine follow-up visits with her doctors on a schedule approximating the one she followed post-accident.
Dr. Collier agreed with Ms. Harmon’s counsel that his prior billing could reflect the cost of those probable future visits.
Doctor Said She May or Might Need Injections, Didn’t Say It Was Reasonably Certain to Be Incurred
Additionally, Dr. Collier testified that Ms. Harmon may need different modalities of treatment in the future that might include trigger point injections, which might possibly be of benefit along with other treatments that might be indicated in the future.
Again, Dr. Collier agreed with Ms. Harmon’s counsel that a review of his past medical bills, totaling $35,947, could define the costs of those possible treatments that may occur in the future.
The bad news for Ms. Harmon?
Florida law restricts recovery of future medical expenses to those expenses ‘reasonably certain’ to be incurred. The appeals court said that there wasn’t an evidentiary basis for those potential future medical expenses.
Testimony or evidence that certain treatments might possibly be obtained in the future cannot justify an award of future medical expenses. Gen. Emps. Ins. Co. v. Isaacs, 206 So. 3d 62, 63 (Fla. 4th DCA 2016)
The learning lesson?
The injured person should ask the doctor to state, in writing, if he or she is reasonably certain to need the future medical treatment.
The appeals court said that the jury’s award for future care is not OK because, other than routine follow up visits, Dr. Collier offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of that potential additional future medical care.
Here is a tip to try to increase the case value:
Ask the doctor to write a report, which states a specific or general dollar amount and allows a jury to calculate the cost of the additional future medical care. The doctor should state the frequency or specific type of treatments that you’ll need.
The appeals court said that there was evidence that Ms. Harmon would probably need future care, specifically routine follow-up office visits. However, there wasn’t enough evidence to support an award of $100,000 for future medical expenses.
If You Have a Surgery, Is Your Injury Considered Permanent?
All things equal, a jury is more likely to consider your injury permanent if you’ve had surgery. The more major the surgery, the more likely that a jury will consider it to be permanent. And if a jury would consider it permanent, then there is a good chance that the responsible insurance company would also. This triggers a better settlement offer.
Take, for example, someone who is in a car accident and has a fractured vertebrae. If he or she has surgery to the fix the vertebrae, doctors are more likely to say that the injury is permanent.
When it comes to spinal fusion surgery, the more levels that are fused, the higher the likelihood that a jury believes that the injury is permanent.
Let’s assume that the injured person has a three or four level spinal fusion surgery as a result of a burst fracture (or other fracture). A burst fracture can happen from a bad car accident or a fall from a height.
Having a four (or more) level fusion is a lot of restriction. It negatively affects your ability to function.
In this case, a jury is more likely to believe that is a permanent injury as compared to a one level fusion.
For settlement purposes, the pain and suffering value of a two level back or neck fusion surgery is likely between $250,000 to $400,000.
A four level fusion surgery likely has a higher pain and suffering value. For settlement purposes, the pain and suffering component of a four level back or neck fusion surgery is likely between $300,000 to $500,000. A four level fusion surgery is a major surgery.
What if I’m Unable to Have the Surgery Because I Have a Pre-Existing Health Condition?
Let’s assume that you’re injured from an accident. Someone else was at fault. You need surgery. However, the surgeon says that he can’t operate because your have a pre-existing injury.
Perhaps you’re diabetic (and your A1C is too high). Maybe you have pre-existing heart disease. Or perhaps your simply too old to have surgery.
In any of these instances, is your case worth the same as if you had surgery?
All things equal, no. This is for several reasons.
First off, you won’t have additional medical bills from the surgery. Without surgery, you total billed charges and out of pocket expenses will be lower. And total billed charges increase the full value of a case.
Second, you won’t have a wound from surgery. Therefore, you won’t be left with a scar. Scars add value to a personal injury case.
That said, if you can’t have surgery due to a pre-existing injury, a jury can still consider your pain and suffering. Like any injury case, it will come down to whether the jury believes you. The jury will also decide if your pain is really so bad that you would have surgery (if a doctor OK’d you for it).
If the jury doesn’t believe that you would have surgery (if a doctor wanted to operate), don’t expect the jury to award the same value as if you had surgery. I’m talking about pain and suffering compensation.
Zurich Says 1 of Biggest BI Claim Costs is Surgery
Check out some of my Florida injury settlements. You will notice that my clients had surgery in the cases that I settled for larger amounts.
Surgery is just 1 of over 76 factors may affect the settlement value of a personal injury case.
Did someone’s carelessness cause your injury in an accident in Florida, or on a cruise or boat?
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