Posted By Alan Sackrin on September 29, 2014
Last Update: 01/11/16
This in-depth article discusses the elements of an injury victim’s pain and suffering claim resulting from a negligent act occurring anywhere in the State of Florida, regardless if the injury is from a slip and fall, a defective product, medical malpractice, a car crash or a work related accident caused by the negligence of someone other than the employer or an employee of the employer.
The general questions we will address here about Florida pain and suffering claims, include:
- What is pain and suffering under Florida law?
- How are “pain and suffering claims” determined?
- How do you claim them (what documentation do you need to do so)?
- What are the “threshold requirements” to collect damages under Fla Statute 627.737?
- What evidence is needed to prove your pain and suffering?
- How do Florida juries determine pain and suffering damages?
Simply put, when someone is hurt in an accident in Florida due to the negligence of another party (which can include a corporation or other legal entity), state law provides that the injured party can be compensated for his or her pain and suffering. The recovery of compensation for pain and suffering is usually part of an overall damage claim against the person (or persons) responsible for the accident.  Damages are grouped into two general categories-economic damages such as medical bills and lost wages and non-economic damages (also known as intangible damages) such as pain and suffering from bodily injuries and loss of the capacity to enjoy life.
What is Pain and Suffering?
The law recognizes two kinds of “pain and suffering” claims: mental and physical. Mental pain and suffering involves things like fear, embarrassment, humiliation, anger, depression, and other emotions that hinder the enjoyment of living which result from the accident and its aftermath. Post Traumatic Stress Disorder (PTSD) can also be a type of mental pain and sufferinge. Physical pain and suffering includes not only the pain and trauma experienced by the accident victim at the time of the injury, but the pain and discomfort experienced during the recovery process and into the future. This would include compensation for one’s inability to perform physical activities as well or as often as one used to prior to the incident.
How are “pain and suffering claims” determined?
Unlike other kinds of damage after an accident, like medical bills and lost wages which are quantifiable, it is not easy to document someone’s pain and suffering. Florida law recognizes pain and suffering as a form of “general damage claim” and allows some leeway in how an injury victim can substantiate the pain and suffering they have experienced and can reasonably expect to experience in the future.
In calculating these damages, a number of factors can be considered in determining the amount of compensation to be paid to an accident victim, including the severity of the injury, type of medical treatment received, the length of recovery, and long term consequences, if any, of the injuries and the impact that the injuries have had on the victim’s life. However, each case will be different, because not only is each accident unique but each person deals with pain differently. 
How do you claim these damages (what documentation do you need to do so)?
Florida law does not provide a laundry list of items that can be used to support a claim for pain and suffering. However, it is common to see the following documentation presented in this type of injury claim:
- The doctor’s written opinion of the victim’s pain and suffering past, present, and future;
- Drug prescription history of medications prescribed to the victim (pain medications, drugs for depression or anxiety, etc.);
- Mental health provider’s written opinion on pain and suffering past, present, and future;
- The injury victim’s own testimony;
- The victim’s spouse and other loved ones concerning their perspective and first-hand accounts of the impact the injuries have had on the victim’s day to day activities;
- Written opinions, research studies, etc., by experts regarding consistency of the victim’s claim with others who are similarly situated.
What are the “threshold requirements” to collect damages under Fla Statute 627.737?
The Florida Legislature has passed statutes that impact injury claims and damage calculations in some situations. For instance, all motor vehicle accidents must have their injury claims align with Florida Statutes 627.730 – 627.7405. Of particular importance to pain and suffering damages is Florida Statute 627.737, which states (in part) :
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:
Significant and permanent loss of an important bodily function.
Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
Significant and permanent scarring or disfigurement.
This law is known for providing the “threshold requirement” for plaintiffs and claimants seeking pain and suffering damages in a Florida car accident case. Here, the law places a burden on the injury victim to provide proof that he (or she) has met the criteria set up in this statute for being awarded these damages.
In sum, to obtain pain and suffering damages in most Florida traffic accident, the injured person must provide proof of either: (1) death of the victim; or (2) permanent injuries involving (a) significant loss of an important bodily function; or (b) significant scarring or disfigurement; and (3) the permanency of the injuries must be shown to exist with a reasonable degree of medical probability-meaning that is more likely than not that a permanent injury or permanent aggravation of a pre-existing condition resulted from the car accident.
Once the injury victim has provided evidence of a permanent injury and their need for continued treatment, it is reversible error for there not to be a damage award. 
What evidence is needed to prove your pain and suffering?
Both in settlement negotiations and at trial, the injury victim bears the burden of providing authentic, admissible evidence of pain and suffering, both physical and mental. Florida law is clear: injury victims have to provide credible evidence of their claims (speculation or uncertainty will void pain and suffering damage awards). 
Some evidence of pain and suffering should not be difficult to produce. Collecting all the prescriptions for pain medication is an easy way to document the medicine that has been given by a doctor for pain. Having the doctor provide his written statement, or having the treating physician take the stand to testify on his opinion of the long-term pain realities of the victim based upon the doctor’s prognosis, is standard evidence for pain and suffering claims.
However, other evidence may need to be obtained with some effort. Large pain and suffering cases will need to have evidence of depression, loss of enjoyment of life, etc., through the or expert testimony of the health care providers.
The veracity and trustworthiness of the claimant is important here. Evidence of pain and suffering (particularly in large awards) needs to support the reality that the claimant is an honest person, not subject to exaggeration or guile. Here, character evidence including testimony of employers, teachers, etc., along with work histories and school records can be helpful in proving up these claims.
How the evidence is used to form the damage amount depends upon how the case is resolved. If the claim is resolved through a settlement, whether at mediation or at another time, then the award is determined based upon a negotiation between the parties using the evidence that has developed in the case through depositions and medical records.. If the case proceeds through trial to a jury, then the jurors will decide the amount to award for pain and suffering.
How do Florida juries determine pain and suffering damages?
Most injury claims are resolved without the need to try the case in a courtroom. However, there are times when the parties cannot agree on an award, in all or in part, and in these cases, the injury victim’s pain and suffering claim will have to be decided by a jury.
At the conclusion of a trial, jurors freely debate among themselves all of the evidence submitted by both the plaintiff and the defendant in an injury case. Pain and suffering claims can include evidence of not only things like the amount of pain medication or mental health counseling for depression the accident victim may need in the future, but can also include evidence on the injury victim’s character and veracity as well. Additionally, the jury may weigh a teacher’s praise of an injured student or a wife’s glowing testimony of her injured husband’s work ethic against the defense’s evidence of prior criminal records or history of quitting jobs without notice.
Pain and suffering determinations have many moving parts because they are “non-economic” damages (meaning, they have no precise value). Additionally, If a jury finds a defendant liable and awards damages for pain and suffering, mental anguish, bodily injury and loss of the capacity for enjoyment of life, the amount awarded can be challenged by either side to the judge. A defendant may claim that the award is shockingly high while a plaintiff, unhappy with the award, may ask the judge to raise it. However, in most cases, an award of pain and suffering by a jury will not be disturbed by the trial judge or an appellate court unless the amount has no basis. The jury is instructed to consider the evidence and to award an amount that is fair and just in light of the evidenced. Different juries can award widely varying amounts for the same injury and judge’ normally will not alter what a jury awards. It is not the job of a judge to second guess what a jury has awarded even if the judge would have awarded a different amount.
There exists a “remittitur and additur” statute in Florida, allowing the trial court judge to adjust the jury’s calculations of pain and suffering if either the plaintiff or the defendant makes a motion for it. Florida Statute 768.74 provides this as a general rule for all jury awards.  Florida Statute 768.043 provides this specifically for Florida motor vehicle accidents. 
Florida Statute 768.043 states:
(1) In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.
(2) In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
(3) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified only with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida.
The pain and suffering experienced by a person injured as the result of another’s negligence can be addressed under Florida law. In order to pursue a claim for pain and suffering, the damages must be substantiated and meet certain requirements since they are not easily determined. However, once proof has been presented by the injury victim, then the claim can support a compensation award against the at-fault party and their insurance carrier. What evidence to believe or disregard is exclusively within the province of the jury, who is the fact-finder in a personal injury lawsuit.
Insurance companies are notorious for downplaying and minimizing these claims as being exaggerated or even phony. It can take a lot of effort, including a lot of evidence, to convince a jury that a large amount should be awarded for pain and suffering and other non-economic damages. Injury victims need to know that there is longstanding precedent in Florida case law to award pain and suffering damages and that with some hard work to support these claims, justice can prevail.
What Should You Do Now?
If you intend to pursue a pain and suffering claim, a good piece of advice is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
- Pain and Suffering Claims Now and In The Future – Do You Have a Case for Pain and Suffering Damages?
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.