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Learn How To Prove A Claim And Get A Settlement Under Florida Law

The most common questions a Florida injury victim will ask when seeking compensation for their pain and suffering, whether the injury is the result of a slip and fall or car accident, are:

What Is Pain And Suffering?

When someone is hurt in an accident in Florida due to the negligence of another party, state law provides that the injured party can be compensated for two general categories of damages:

Economic Damages – This is where a victim recovers their medical bills, lost wages and other quantifiable costs and expenses; and

Non-Economic Damages – These damages include loss of the capacity to enjoy life and pain and suffering.

Pain and suffering damages are somewhat subjective in nature. Meaning, there is no way to calculate these damages with certainty. That’s why they are also known as intangible damages because they are estimate of what it will take, in terms of dollars and sense, to return a victim to the condition he or she was in before their injury.

However, the good news about Florida pain and suffering claims is that they can include a victim’s past and future damages and they can include both physical and mental pain.

2 Types Of Pain And Suffering Claims

The law recognizes two kinds of “pain and suffering” claims: mental and physical.[1]

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 suffering. [2]

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.

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.

How Are Pain And Suffering Claims Calculated?

Unlike other kinds of damages 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. [3]

Note: Some attorneys, and insurance adjusters, use a multiplier to the medical bills, etc. for calculating a fair amount for pain and suffering. However, that is a huge generalization. The Florida Jury Instruction on the amount to award for non-economic damages to be sustained in the past and in the future, such as pain and suffering, disfigurement, disability, mental anguish, loss of capacity for the enjoyment of life advises the jury that, “There is no exact standard for measuring such damages. The amount should be fair and just in light of the evidence.” (See below)

What Are The “Threshold Requirements” To Collect These Damages Under Florida 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) [4]:

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.

Death.

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.

Read: Florida Car Accident Compensation Law

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. [5]

What Is The Statute Of Limitations?

In Florida, injury claims based upon negligence have to be filed within a certain time before the claim is barred.  The Florida Legislature has set these deadlines in specific statutes, called statutes of limitations.

According to Florida Statute 95.11(3)(a), any action founded on negligence must be filed within 4 years from the date of the accident.

If a victim does not file a lawsuit before that deadline, then the lawsuit will not be permitted to proceed. Meaning, a judge has the power to dismiss the lawsuit by granting a motion for summary judgment in favor of the defendant.

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 are required to provide credible evidence of their claims (speculation or uncertainty will void pain and suffering damage awards). [6]

Some evidence of pain and suffering should not be difficult to produce. Collecting the victim’s prescription pain medication is an easy way to document the pain he or she is experiencing. Having a doctor provide a written statement, or having the victim’s treating physician take the stand to testify on his opinion of the long-term pain realities of the victim is standard evidence for pain and suffering claims.

However, other evidence may be difficult to ascertain. Evidence of depression, loss of enjoyment of life, etc., are difficult to evaluate and may only be done through the expert testimony of health care providers.

The veracity and trustworthiness of the claimant is important in proving these damages. Pain and suffering (particularly in large awards) awards depend, in part, on the honesty of the claimant. Exaggeration by a victim is not helpful. Character evidence including testimony of employers, teachers, friends and family, etc., along with work history and employment records can be helpful in evaluating the victim’s propensity to be truthful.

What evidence is used to prove a claim depends upon when the case is resolved. If the claim is resolved through a settlement, whether at mediation or during other post-suit negotiations, then the evidence used will likely be what is found during the discovery process, which includes depositions, interrogatories, and the review of medical records.. If the case proceeds through trial to a jury, then the jurors will decide the amount to award for pain and suffering based the evidenced produced from discovery plus expert testimony that has been vetted by the lawyers through cross examination.  An important element to note here is that juries are given a lot of discretion in determining pain and suffering compensation.

What Documentation Do You Need To Prove A Claim?

Florida law does not provide a laundry list of items that can be used to support and prove a claim for pain and suffering. However, it is common to see the following documentation presented in this type of injury claim:

  1. The doctor’s written opinion of the victim’s pain and suffering past, present, and future;
  2. Drug prescription history of medications prescribed to the victim (pain medications, drugs for depression or anxiety, etc.);
  3. Mental health provider’s written opinion on pain and suffering past, present, and future;
  4. The injury victim’s own testimony;
  5. 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;
  6. Written opinions, research studies, etc., by experts regarding consistency of the victim’s claim with others who are similarly situated.

Read: 5 Documents You Should Include With Your Slip And Fall Demand Letter

What about Future Pain and Suffering?

Florida law allows for pain and suffering damages to be divided between (1) the pain and suffering that the accident victim has already borne from the time of the injury to the present day; and (2) the pain and suffering that he or she will likely endure in the future as a result of their injuries.  Meaning, future pain and suffering is a separate element of damages to be considered in settlement negotiations or by a jury.

If an accident case goes to trial, a jury is given leeway in its evaluation of future pain and suffering.  The jury’s decision will not be disturbed unless the jury’s verdict is blatantly against longstanding Florida law.

However, this does not mean that the jury has a free hand in deciding how much the victim should receive as future pain and suffering damages, no matter how egregious the accident and how sympathetic the victim.

What Standard Is Applied To Future Pain And Suffering Damage Awards?

At either end of the spectrum, a jury’s decision must meet a “reasonableness” test.

For instance, if the jury decides to award a substantial amount of money to compensate for future pain and suffering, this award will not withstand judicial scrutiny if that amount would not be “reasonably certain” to result from the injury.  A jury may feel emotionally swayed to award a large amount of future pain and suffering damages, but the jury must have factual evidence to support their determination.

Failing to award any pain and suffering damages can also be legal error.  It can be unreasonable and a reversible error for a jury to enter a verdict of zero damages for future pain and suffering if there has been evidence presented which they have failed to consider.

The Case of the Citrus Bowl Trip and Fall Shoulder Injury

For instance, consider the case of Parrish v. City of Orlando, 53 So. 3d 1199 (Fla. Dist. Ct. App. 2011).

This case began when Patricia Parrish and her husband decided to go and watch the annual Citrus Bowl football game being played in Orlando.  As the couple was walking toward the stadium, Patricia tripped on an uneven sidewalk and hurt her left shoulder as it impacted the concrete.

Trip and Fall on Sidewalk: Five Shoulder Surgeries

Patricia had a serious injury.  Her treating physician testified she suffered a comminuted proximal humerus fracture in her left shoulder, which required shoulder replacement surgery. Afterwards, she developed axillary nerve palsy.  This meant she had to undergo another surgery on her shoulder.

Then, Mrs. Parrish had post-surgical complications which meant she had to have an arthroscopy of her shoulder and a repair of its rotator cuff.  The shoulder then became infected, requiring her physicians to remove the shoulder implant and place an antibiotic cement spacer in her shoulder.  Finally, she underwent a second shoulder implant surgery.

In sum, Mrs. Parrish had to have five different surgeries on her shoulder as a result of the injuries sustained in the trip and fall on the city sidewalk.

She also had to have physical therapy throughout this course of treatment.  Her physician testified that the physical therapy would have to continue for the rest of her life.  It was necessary in order to make sure that the shoulder implant remained in place, did not loosen, and kept working as it should, as well as therapy being necessary to avoid the second implant from becoming infected.

Patricia Parrish suffered a permanent disability from the accident.  She faced living the rest of her life with a limited range of motion.  This was caused both by scar tissue and severe nerve damage.   She would not be able to reach overhead as she had before the accident, for instance.

Patricia testified that before the trip and fall that day, she had no problems with her shoulder.

After the accident, she explained she is in constant pain.  She no longer had strength in her shoulder, since she had lost nerves and muscle, and she had limited mobility in her left arm. If her husband tried to move her arm above her shoulder, she experiences extreme pain.

Claim against the City of Orlando

Initially, Patricia filed a claim with the City of Orlando, since the City was responsible for maintaining the sidewalk.   The City refused to negotiate a settlement with Mrs. Parrish.  This forced Patricia Parrish to file a lawsuit against the City for negligence.

The case went to trial and the jury awarded Mrs. Parrish her economic damages (things like medical expenses).  The jury recognized both past and future economic damages, including covering her future medical care costs.

However, the jury failed to award Mrs. Parris any non-economic damages, which include past and future pain and suffering.  They gave her a “zero award” for all her pain and suffering claims. The City agreed this was a legal error by the jury insofar as past pain and suffering.

However, the City of Orlando would not agree that the jury erred by failing to award Mrs. Parrish any future pain and suffering damages.  So, Patricia Parrish appealed the jury verdict to the appellate court, which she won.  Consequently, the case was returned to the lower courts so a jury could decide what amount of money should be awarded to Patricia for her future pain and suffering.

Specifically, the jury awarded $51,929.02 for past medical expenses, and $130,000 for future medical expenses, and $0.00 for past or future non-economic damages.

Jury Verdict: Abuse of Discretion and Florida Statute 759.74

The reviewing court first confirmed the respect given to jury verdicts, and that a jury’s decision would only be disturbed or reversed if the jury’s verdict amounted to an “abuse of discretion.”  Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999)Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998).

They would also review her appeal under the guidance of Florida Statute 759.74, which instructs the court to review the jury’s actions to:

  1.  find out if the “…amount [of damages awarded] is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” See Florida Statute 768.74(1); and
  2. “[i]f the [trial] court finds that the amount awarded is excessive or inadequate, it [is required to] order a remittitur or [an] additur … If the party adversely affected by [the] remittitur or additur does not agree, the court [must] order a new trial … on the issue of damages only.” See Florida Statute 768.74(2),(4).

Past versus Future Pain and Suffering Damage Awards

The City of Orlando argued to the appeals court that while it agreed there was error on the part of the jury to fail to award any money for past pain and suffering experienced by Mrs. Parrish, there was no error regarding her claims for future pain and suffering.  The City’s position was that Florida law permits an award of future economic damages with no corresponding award for future non-economic (pain and suffering) damages.

The appellate court clarified the position of Florida case precedent to jury awards of future non-economic (pain and suffering) damages.  The Courts have recognized that an award of future economic damages does not automatically require the jury to award future non-economic damages.  This was decided in Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1267 (Fla. 5th DCA 2004) .

Future non-economic damages can be uncertain or speculative.  As the Florida Supreme Court advises:

Future damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering.

The court, citing the Manasse case, went on to say that because the need for future medical expenses is often in dispute, as it was in this case, that an award of future medical expenses does not require an award of non-economic damages.

However, The Defendant Did Not Contest Future Pain and Suffering

Things are different when the defendant does not contest or present any evidence disputing the plaintiff’s evidence of future non-economic damages.

The City of Orlando did not put any medical expert on the witness stand.  The City limited its arguments to the jury’s right to accept or reject the testimony of Mrs. Parrish’s treating physician, who did take the stand.

The only medical explanation for Mrs. Parrish’s injuries and her present and future damages was given by her doctor.  The jury had no other evidence or medical explanation.

Accordingly, the medical evidence on permanence or causation was undisputed, unimpeached, and not otherwise subject to question based on other evidence presented at trial.

This meant that the jury could not ignore or reject it.  The jury could not render a verdict that conflicted with the testimony given by the accident victim and her doctor.  When the doctor testified her shoulder injury was a permanent injury caused by the fall, and that she would experience future pain and suffering, this had to be respected by the jury. Likewise for Patricia Parrish’s own testimony of continuing pain and suffering.

There was no other medical explanation for the injury’s etiology.  Accordingly, it was legal error for the jury to fail and award future pain and suffering damages to Mrs. Parrish.

The failure to make an award for future non-economic damages is unreasonable when there is undisputed evidence of permanent injury and a need for treatment in the future.

Thus, it was wrong (unreasonable) for the jury not to have awarded Ms. Parrish some future non-economic (pain and suffering) damages.   The court looked to two cases in support of its finding:

In Garrett v. Miami Transfer Co.,964 So.2d 286, 291 (Fla. 4th DCA 2007), Michael Garrett was hurt on the job when he fell 13 feet to the ground while climbing a transformer pole operated by Florida Power and Light.  His hip, arm, and wrist were broken.  Pins had to be inserted into his wrist. Garrett developed carpal tunnel syndrome after his initial wrist injury.  He had to have two more surgeries on his wrist.

Garrett sued for his damages.  At his trial, the Court held that that the “jury’s failure to award future [non-economic] damages was unreasonable” where it had awarded significant amount for future medical expenses but no pain and suffering damages, while his evidence was undisputed by the defense that the fall had caused his injuries and that he would need future treatment, indicating future pain.

In Deklyen,867 So.2d at 1268,   Donna Deklyen was a truck driver who was hurt when she tripped and fell at a Truckers World truck stop.  She broke her wrist.  The injury was so severe that the impact caused the bone of her wrist to jut through her skin.  Donna had to have three different surgeries on her wrist.  The doctors had to insert pins, screws, and metal plates into her wrist not only to stabilize it but to try and control her pain levels.  After the surgeries, Mrs. Deklyen was left with a misshapen hand that was constantly hurting.  She had an extremely limited range of motion on that wrist.

She was also forced to sue for damages and her case went to the jury.  The jury returned a verdict against Truckers World for substantial past and future economic damages but no past or future non-economic damages. Deklyen appealed and won a new trial based on the issue that the pain and suffering damages were against the manifest weight of the evidence.

The court found that where a jury awards a plaintiff past and future economic damages and zero damages for either past or future pain and suffering, despite indisputable evidence that plaintiff suffered pain from injury, and the jury is presented evidence that pain would continue well after injury, then their zero damage award is grossly inadequate as a matter of law.

In the end, the Parrish jury verdict was against the manifest weight of the trial evidence, and Patricia Parrish was awarded a new trial so an award amount could be determined for her future pain and suffering damages.

What Happens When A Party Isn’t Happy With A Jury’s Award  Of Pain And Suffering Damages?

At the conclusion of a trial, (although some judges have started giving instructions at the begging of some trials) the jurors are given instructions by the judge as what elements to evaluate when deciding damages. During deliberations, jurors freely debate among themselves all of the evidence submitted by both the plaintiff and the defendant during the trial. Pain and suffering awards are often difficult to calculate because they are “non-economic” damages (meaning, they have no precise value). For this reason, 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.

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 is excessive or is inadequate as a matter of law. A jury is instructed to consider the evidence and to award an amount that is fair and just in light of the evidence presented. 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.

Read: Slip and Fall Pain and Suffering Lawsuits (Examples of lawsuits where the pain and suffering damage settlements and awards were found to be inadequate as a matter of law.)

To address this issue, the Florida legislature enacted a “remittitur and additur” statute 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 this relief. Florida Statute 768.74 provides this relief as a general rule for all jury awards. [8] Florida Statute 768.043 provides this relief specifically for Florida motor vehicle accidents. [9]

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.

How Can A Victim Help A Jury Determine Damages?

Calculating pain and suffering damages is a difficult task to accomplish. After all, how can a third party determine the amount of a pain a negligence victim has or is suffering due to his or her injuries. Thus, the testimony of the victim can be critical in making a determination of how much compensation a victim should receive. That’s why we recommend to all of our personal injury clients that they be honest about their injuries. Their credibility and truthfulness is a critical component to valuing their damages.

What Should You Do?

Insurance companies are notorious for minimizing these claims for being exaggerated or without merit. The reason for this is due in part to Florida law requiring victims of certain types of injury cases to have significant and permanent injuries before a jury can award compensation for pain and suffering and other non-economic damages.

If you have been harmed as a result of negligence and intend to pursue pain and suffering damages, 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 how insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

NOW WATCH:

What are types of pain and suffering damages you can recover in a Florida slip and fall lawsuit?

 

Related:

See – 5 Things You Get From Alan Sackrin and How They Can Help You!

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Endnotes

[1] USLegal.com, “pain and suffering” defined

[2] See, Pierard v. Aerospatiale Helicopter Corp., 689 So. 2d 1099, 1101 (Fla. 3d DCA 1997)

[3] See, Phillips v. Ostrer, 481 So. 2d 1241, 1246 (Fla. 3d DCA 1985)

[4] Florida Statute 627.737

[5] Garrett v. Miami Transfer Co., 964 So.2d 286 (Fla. 4th DCA 2007).

[6] Parrish v. City of Orlando, 53 So.3d 1199 (Fla. 5th DCA 2011)

[7] See, Philip Morris USA, Inc. v. Naugle, 103 So. 3d 944 (Fla. 4th DCA 2012)

[8] Florida Statute 768.74

[9] Florida Statute 768.043

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