The answer is maybe.
It’s no secret that surgery is the biggest value driver to a personal injury case. In 15 of my 16 biggest personal injury settlements, the injured person had surgery.
In the 12 month period before October 2019, my average settlement was for $18,570. That includes car accidents, slip and falls and other cases both with and without surgery.
Now, let’s just look at surgery cases. What is my average settlement for cases where the injured person had surgery?
During the same time frame, it is $218,750! Therefore, my average settlement for surgery cases is around $200,000 higher than for cases without surgery.
Now you can see how much value surgery may add to a personal injury case.
Having surgery is not the only way to get a $200,000 settlement in an injury case. 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. Don’t try to game the system. You will lose!
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 your net settlement. The net settlement is the amount of money “in your pocket”. The net settlement is after your attorney’s fees, costs, medical bills and liens are paid.
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.
$100K Settlement for Back Surgery With Clear Liability in Rear End Crash
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). Keith asked me for a free consultation to see if I could represent him. During our meeting, he hired me.
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 $35K (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 Only $4K (Blamed the Injury on her Age)
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.
$100K Settlement Before Back Surgery Was Scheduled (Car Accident)
A young lady was driving in her car in North Miami Beach. Another car hit her. After the accident, she had back pain. She also broke her nose. She wanted to hire a Miami car accident lawyer. Her relative recommended me. She hired me.
Learn more about this $100,000 settlement.
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. An ORIF puts pieces of a broken bone into place using surgery. Screws, plates, sutures, or rods are used to hold the broken bone together. As you may imagine, an ORIF surgery significantly increases the full value of a personal injury case.
A doctor also did ORIF surgery on non-dominant hand ring finger fracture. Non-dominant arm or hand fractures are worth less than dominant fractures.
Hardware Removal Surgery Increases the Full Settlement Value
The hand surgeon later removed the hardware from the distal (end) portion of his ring finger. The surgery was done under local anesthesia.
The full settlement value of a case is less if local anesthesia is used instead of general anesthesia.
Because general anesthesia is more serious and has more risks.
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.
Does The Length of the Surgery Affect the Case Settlement Value?
Yes, it affects the full case value. A tourniquet is a device which applies pressure to a limb or extremity so as to limit – but not stop – the flow of blood. It may be used in emergencies, surgery, or in post-operative rehabilitation. The tourniquet time is listed on the operative (surgery) report.
Whenever a doctor performs surgery, he or she creates an operative report. This report talks about the surgery.
You (or your attorney) should always request this report. When you (or your lawyer) receives it, send it to the insurance company as soon as possible. This will allow the claims adjuster to increase the reserve as fast as possible.
I have had adjusters tell me:
The total torniquet time was only 15 minutes (or so).
The adjuster is implying that the surgery was not a major surgery. In turn, the insurance company often makes a smaller offer than they would offer if the injured person had surgery.
Pedestrian Gets $325K (Leg Surgery from Car Accident)
A Switzerland resident was visiting Miami, Florida. He was standing by his rental car in Coconut Grove. In other words, he was a pedestrian. A driver of a car struck him.
He broke a bone his tibia (leg). He had surgery. Specifically a rod and screws were put in his tibia. After the car accident, he searched for a Miami car accident lawyer. I gave him a free consultation and he hired me.
Since he was basically getting into his rental car when the accident happened, he was entitled to PIP insurance. This is because Florida a No Fault state with mandatory PIP.
He was a tourist from another country who was injured in Florida. Therefore, his case had some unique challenges. With a ton of hard work, I was able to overcome these challenges.
Check out his $325,000 settlement.
$325K Settlement for Arm Fracture
My client tripped and fell. She had a rod put in her humerus (upper arm). She had some nerve damage. I worked on this case with a different law firm.
Driver Gets $300K Settlement for Surgery After Car Crash
Ryan was a Georgia resident. He was in Clearwater, Florida for business.
Ryan was driving a rental car straight down the road. Another driver was heading in the opposite direction. Allstate insured the other driver. The other driver made a left hand turn and crashed into Ryan’s rental car.
As a result of the impact, Ryan broke his leg. Paramedics took him to the hospital.
Specifically, Ryan fractured his tibial plateau (leg). While he was in the a hospital, he filled out our website consult form to see if I could represent him. He specifically said that he just wanted to know his rights. In other words, when he filled out the form, he wasn’t sure he wanted to hire a lawyer. (I, of course, respect that.)
However, during our phone call, I explained all the issues that he faced in his case. Since Ryan lived in another state and was injured in Florida, his case had some unique aspects.
After our phone call, I sent Ryan my fee contract. He quickly hired me. He had surgery at the hospital.
I sued Ryan’s underinsured motorist (UIM) insurer, Travelers. The responsible insurance companies paid $300,000 to settle his personal injury case.
$300K Settlement for Skin Grafts to Leg (Slip and 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.
$250K Settlement for Surgery to Broken Arm (Slip and Fall)
On April 20, 2018, Angela was staying at a resort in Lake Buena Vista, Florida. While attempting to take a bath, she slipped and fell.
As a result of her fall, she broke her arm.
At the hospital, a doctor performed surgery to stabilize her fracture.
About 20 days after her accident, she completed our online form to get a free consultation to see if I could represent her. Bathtub slip and fall cases are often tough. However, she was badly injured. Thus, I accepted her case.
Unfortunately, the surgery didn’t give her complete relief. About a year after the surgery, the doctor removed the plate and screws. This hardware removal surgery added about another $100,000 in pain and suffering to the full settlement value.
Philadelphia Insurance Company insured the resort. Philadelphia’s first offer was for $12,500. Subsequently, I took a tough negotiation stance.
On August 5, 2019, I settled Angela’s case for $250,000. The actual settlement check is below.
This $250,000 settlement was about ten times the medical bills that were paid!
Those medical bills consisted of the $23,000 that her health insurance paid to her medical providers. Her health insurance contract required her to pay back the health insurance for the medical bills that it paid to her medical providers. However, since she had an attorney (me) represented her in this case, we received a deep discount on the amount that we had to repay the health insurance company.
Her “owed medical bills” also included her out of pocket medical bills, which were around $2,000.
Her medical providers total billed charges were approximately $218,215.00. Looking at it another way, the $250,000 settlement was for 89% of the total medical billed charges.
The total billed charges are not necessarily what the injured person owes to the medical providers. If the injured person has health insurance, then it usually pays the medical providers at a deeply discounted rate.
After my attorney’s fees, costs, and paying her medical bills and health insurance lien, she gets over $157,350.
$210K Settlement for Shoulder Surgery (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.
$150K Settlement for Back Surgery (Car Accident)
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 $2.9 Million (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. The fracture 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.
Court OKs $1.9 Million Verdict for Pain and Suffering for 4 Knee Surgeries
This is not my case. Angela Thompson slipped and fell in an exterior walkway that was constructed by Hunter Construction Services on the property of the Diocese of Palm Beach.
As a result of the fall, Angela broke her knee cap. Doctors put hardware in her kneecap during a surgery. She was out of work for 3 months.
Later, during another surgery, doctors removed the hardware in her knee. She was out of work for a month.
After, a doctor did an arthroscopic surgery to clean out the cartilage in her knee. She was out of work a week. Subsequently, she had a partial knee replacement (a “Makoplasty”). Knee replacements can be worth a lot.
She hired a personal injury lawyer. She sued the construction company and the Diocese of Palm Beach, Inc. for negligence. They defendants admitted they were negligent for failing to
Zurich Insurance Company insured the defendants. It provided a defense attorney for the Diocese of Palm Beach and the construction company.
Angela offered to settle her personal injury lawsuit against both the church and the construction company for $425,000. However, Zurich Insurance Company rejected this offer.
This turned out to be a big mistake.
In 2014, a Palm Beach County jury awarded her $1.5 million for her pain and suffering, and loss of enjoyment of life up to trial.
The jury also awarded $400,000 for her future pain and suffering. She was expected to need 3 more surgeries. She was expected to live another 45 years.
The jury also awarded her money for past medical bills, lost wages and future medical bills. The total judgment was for $2.5 million.
The church and construction company appealed. The appeals court approved the jury’s award. Apparently, Zurich Insurance undervalued the claim by over 2 million!
This case shows you that insurance companies sometimes undervalue claims. Even above average insurers like Zurich. Insurance companies don’t always have the injured person’s best interest at heart.
Jury Awards $685K for Neck Fusion Surgery (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.
Certain Surgeries May Lead to More Surgery (And Increase Full Settlement Value)
Some surgeries are known to lead to an increased chance of needing a future surgery. For example, let’s say that you have a spinal fusion. Your doctor will likely agree that after a spinal fusion surgery, you at increased risk of needing a future fusion surgery on the adjacent levels. This is called “Adjacent Segment Pathology” or “Adjacent segment disease”.
If you have a spinal fusion surgery due to someone’s negligence, ask your doctor (in the medical records) to explain that you have an increased chance of needed another fusion surgery. You can then argue that the careless party’s insurance company should also pay you compensation for your future surgery.
Spinal fusion surgery settlements can be big. You don’t want to limit your settlement to the value of the one spinal fusion surgery. You also want to make a claim for the value of a future fusion surgery.
Likewise, let’s say that you have a meniscus tear. Maybe you tore your meniscus in a car accident, or you slipped and fell. If you’re 50 years or older, and you have athroscopic knee surgery, a study shows that you have an increased chance of needing a total knee replacement. Again, ask your doctor to explain this in your medical records. Total knee replacements can be worth a lot of money for settlement purposes.
You don’t want to limit your settlement to the value of a meniscus tear. You also want to get compensated for a future knee replacement.
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.
Which Rental Car Companies Have Enough Insurance To Pay For the Fair Settlement Value of a Surgery?
If you purchased Liability Insurance Supplement (LIS) with Thrifty, Dollar or Hertz, it includes $1 million in uninsured/underinsured (UM/UIM) motorist coverage. In most cases, this is enough insurance to cover the fair settlement value of one (or more surgeries). This is because the average settlement value of one (or more surgeries) is way under $1 million.
Keep in mind:
UM coverage only applies if the at fault driver is uninsured.
The UM/UIM coverage applies (while occupying the car) for bodily injury and property damage.
Who insures Thrifty, Dollar and Hertz?
Ace American Insurance insures Thrifty. You should hire an attorney that can show you his past settlements with Ace. I’ve settled case with Ace. ESIS handles Thrifty’s car accident claims and settlements.
Rental Car Occupants Should Not Quickly Settle With the At Fault Driver
Assume that Mike is in a rental car. Sara is driving another car. She carelessly crashes into Mike.
Sara only $10,000 in BIL coverage. Unfortunately, this is very common in Florida.
Due to the crash, Mike has a accident related surgery. Here, the full value of pain and suffering for Mike’s surgery is worth more than the Sara’s $10,000 BIL coverage limit.
In this instance, Mike should not quickly settle his or her injury case for $10,000 with the at fault driver.
First, Mike does not want to give up the right to make a UM claim. This can happen if the you don’t follow a particular UM claim procedure. Mike can also lose his UM claim if the settlement release with Sara’s insurance company is poorly worded.
Second, the injured person does not want to end up in Federal court. Mike can wind up in Federal court if he releases the at fault driver.
He or she wants to keep the case in Florida state court. There are many advantages to keeping your case state court (instead of Federal court). By not immediately accepting Sara’s $10,000 BIL limit, Mike keeps his case against the UM insurer in state court.
Which Rental Car Companies Offer $100K in UM Coverage in Florida?
Alamo Rent a Car and National Car Rental. If you rented a car from Alamo Rent a Car, hopefully you purchased Extended Protection (EP). EP is optional. It is not required.
EP includes UM/UIM coverage for bodily injury and property damage in an amount equal to the minimum financial responsibility limits applicable to the Vehicle (the Primary Protection).
EP also includes additional coverage through an excess liability policy, with limits for the difference between the statutory minimum underlying limits and $100,000 per accident.
Again, Florida doesn’t have a minimum UM limit. Thus, Alamo’s UM limit is $100,000 per accident.
In many cases, this $100,000 limit will not be enough to cover the full value of the pain and suffering for a surgery.
Alamo’s EP insurance coverage is underwritten by Ace American Insurance Company.
National Car Rental also offers $100,000 in UM coverage if the renter purchased Supplemental Liability Insurance (SLI).
Does Avis or Budget Rent a Car Offer Uninsured Motorist Coverage?
I’m not sure if Budget Rent a Car’s Supplemental Liability Insurance (SLI) includes Uninsured Motorist/Underinsured Motorist coverage.
However, Florida doesn’t require UM coverage. Thus, I assume Budget’s SLI does not have UM coverage. However, I’m not sure.
Avis’ website says that Additional Liability Insurance does not include UM/UIM coverage except in states where mandated by law up to maximum amount of $100,000 or in such amounts as mandated by law.
Thus, I assume that Avis does not offer UM coverage in Florida.
Some Other Rental Car Companies Don’t Offer UM Coverage (in Florida)
Unfortunately, some Florida rental car companies don’t offer uninsured motorist coverage. This is true even if you purchase LIS coverage when you rent a car. Examples of companies that I’ve seen who don’t offer UM coverage are small (mom and pop) rental companies, Enterprise Rent a Car, Sixt, Advantage Rent a Car.
Basically, if you want to be able to make an UM claim for a car accident in Florida, don’t rent a car through Sixt or Advantage Rent a Car.
Sixt Personal Accident Insurance (PAI) is underwritten by ACE USA.
Check out my in-depth article on rental car accident claims and settlements.
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