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Florida Car Accident Q & A – Ask Alan

Below is a transcript of a conversation with Alan Sackrin where he was asked about some of the common car accident issues he has dealt with over his 40+ years as a car accident lawyer.

To learn about Alan Sackrin’s qualifications as a South Florida Car Accident Lawyer, click here.

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Q: What is your definition of pain and suffering?

A: Before I talk about pain and suffering damages, it’s important to understand that in a personal injury lawsuit, whether a car crash, car accident, a slip and fall, medical malpractice, or a bad product, there are essentially two types of “compensatory damages.” There are economic damages, which are medical bills, lost earning ability, and lost wages in both the past and the future. Non-economic damages, such as medical bills, are generally referred to in the legal profession as pain and suffering damages.

Related:

What is Pain and Suffering under Florida Law?

Q: What Are The Different Types of Pain and Suffering?

A: When you have an injury, be it a bad fracture, a herniated disc, or a bad back, you can obtain a recovery for your pain and suffering, bodily injury, disability, impairment, scarring or disfigurement, enjoyment of life, or the inconvenience that the injury/injuries have caused Now, a jury is instructed about these damages; pain and suffering and disability, bodily injury, impairment, scarring and disfigurement, and they ask questions during jury selection, “How do we decide that” or “How do we figure all of that out?”

Related:

Pain and Suffering Claims Now and In The Future – Do You Have a Case for Pain and Suffering Damages?

Q: What Do You Need To Prove To Recover Pain and Suffering?

A: At the end of a personal injury lawsuit, the judge explains to the jury, “You are to award an amount that is fair and just in the light of the circumstances,” as well as the fact that “there is no exact standard for measuring such damages.” In order to obtain a fair and just award of pain and suffering or non-economic damages, you must prove that there was an injury or injuries caused by a person’s negligent conduct along with the negative effects of the injury on the victim’s life. What have those injuries taken away from the plaintiff (the person suing)?

For example, an injury may prevent a person from playing sports that they played frequently beforehand. Perhaps the injury prevented a person from playing a musical instrument. One injury could be devastating to one person because of the person’s profession or because of the person’s recreational activities but have a totally different effect on somebody else. Pain and suffering damages have to be distinguished from punitive damages, those damages which are meant to punish people.

Q: Are Punitive Damages Recoverable For My Pain and Suffering?

A: Punitive damages are very rarely awarded in civil negligence cases because you have to prove horrible conduct on the part of the person who caused an accident or an injury. Pain and suffering damages are compensatory damages, and the one element of the compensatory damages, just like medical expenses and lost wages, are the economic aspects of compensatory damages.

Q: What is Florida’s Wrongful Death Law?

A: Florida’s wrongful death statute begins at Florida statute 768.16. With common law, before there was a statute, nobody could recover anything if you killed someone negligently. Most states, and perhaps all states, have a wrongful death statute, where the estate of the person who died as well as selected beneficiaries and relatives are entitled to recover certain elements of damages resulting from the death of the loved one. In Florida, let’s say you’re a married man, 50 years old, with a 47-year-old wife and children who are 16, 15, and 13 years old, and you are killed as a result of the negligence of somebody else. Here, a wrongful death lawsuit would be filed, but it’s would not be brought by the individuals. The personal representative of the deceased person’s estate would file the lawsuit on behalf of the beneficiaries and survivors as well as on behalf of the estate itself. The beneficiaries in this case would be the spouse and the minor children. Interestingly, in Florida, a minor child under the Florida wrongful death statute is defined as a child under the age of twenty-five, not under the age of eighteen.

Q: What Are The Different Types of Damages Recoverable In A Wrongful Death Claim?

A: Florida’s wrongful death statute enumerates the different elements of damages that each beneficiary as well as the estate can recover. For example, the surviving spouse can recover both economic and non-economic damages. By economic damages, I mean loss of support and services of her husband. Her mental pain and mental anguish resulting from the loss of her husband classify as non-economic damages. The minor children can basically recover the same things—loss of support and services of the father as well as the mental pain and anguish associated with the loss of their father.

Any other relative who is dependent partly or wholly for the support and services of the decedent can bring a claim for the support lost too. An example could be a male deceased individual who had a forty-two-year-old brother who the deceased helped to support. In this case, the brother of the deceased can indeed bring a claim for the support lost, not for the mental anguish associated with losing the brother, but just for the economic damages—the loss of support. Any individual who paid the funeral expenses, relative or non-relative, also has a claim to recover those in the wrongful death statute. The estate of the person’s claim is called the loss of net accumulations. The loss of net accumulations refers to the loss of savings that the person who died would’ve obtained had they lived and worked their normal life after considering all their expenditures and all the support and services that they gave to their family.

Q: What Are Some Peculiarities of Florida’s Wrongful Death Law?

A: Wrongful death statutes fill a void in the law that existed years ago that used to say it’s better off killing somebody than seriously injuring somebody because in many cases, the damages would be a lot less severe. This statement is still true to a certain extent. A lot of times people are killed in accidents but they do not have a spouse or any minor children at the time and in that case, the surviving parents can recover for pain and suffering and mental anguish; however, it’s a very complicated statute. There are other nuances with it, but essentially the Florida wrongful death statute is a claim in which the personal representative of the estate is appointed, usually a spouse but sometimes not, who brings a claim as personal representative on behalf of all the beneficiaries—the survivors. The survivors are specifically identified in the statute, and the elements of damages that they each can recover are identified in Florida’s wrongful death statute.

Remember, you also must prove liability or fault that the death resulted from the negligence or the defective product manufactured by a producer. Essentially, these elements are the salient, important facts about Florida’s wrongful death statute.

Q: Tell Me About Florida’s Joint Tortfeasor Law.

A: Many accidents, especially car accidents and multi-vehicle accidents, involve more than one driver that’s at fault in causing the collision. These cases are very similar to medical malpractice cases. Many times, there’s more than one doctor or healthcare provider that has caused the injury. Disregarding the fact that the person suing might be at fault, if you are involved in a car accident as a passenger in your friend’s car, then both your friend and another driver are at fault in causing the collision. They are called joint tortfeasors. If two people caused an injury and one person was one percent at fault and the other person was 99% at fault, then the plaintiff can recover his or her damages fully from the driver that was one percent at fault. This hypothetical example would come into play if that driver who was one percent at fault was the one who had a lot of insurance and the other driver didn’t.

Sometimes there is a driver who might have been 60% at fault and another one 40% percent at fault, and according to the old law, the plaintiff could recover 100% of the damages from the one with sixty percent at fault. Previously, any tortfeasor was responsible for all of the damages, regardless of the percentage of fault. The law has evolved over the years. Today in Florida, a tortfeasor, meaning someone who is responsible for causing the collision or causing the accident and the injuries, is only responsible for the percentage of fault that a jury finds them responsible for, otherwise known as several liability.

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Q: What Do Juries Decide?

A: Many times, there’s a lawsuit brought against a defendant and not another potential tortfeasor (due to lack of insurance), and the person sued may say, “I wasn’t at fault, it was another driver or another actor at fault,” or, “Even if I was at fault, part of the blame goes to this non-party of the lawsuit.” Oftentimes juries are asked to decide the degree of fault of someone who is not even involved in the lawsuit.

If there’s one defendant in the case that is found 40% responsible, and another party aside from the lawsuit that is found 60% responsible, then the party found 40% responsible is required to pay 40% of the damages awarded to the plaintiff. There are some pros and there are some cons to this law, but there’s no purpose to describe the details now. It used to be joint and several liability, which means anyone who was at fault was responsible for all of the damages that the plaintiff could recover.

Related:

How Do Florida Juries Decide Damage Awards When The Victim Has A “Pre-Existing Condition?”

Q: Tell Me About Florida’s Seatbelt Law

A: What are the implications of not wearing a seatbelt when required in car accident negligence cases? Florida’s seat belt law, section 316.614, mandates when somebody must wear a seat belt, which is in almost all cases. In many accident cases, a defendant might admit that he or she was negligent in causing the collision, and therefore negligent in causing some of the injuries, but may claim that even though the plaintiff, either a driver or passenger in the other car, was aware of the collision, they were negligent by not wearing a seat belt and causing their own injuries.

Q: What Happens If The Injured Party Was Not Wearing A Seatbelt At The Time Of The Car Accident?

A: The law allows evidence of lack of use of a seat belt by a plaintiff (someone who sues) to be considered as comparative negligence in cases. For example, if a plaintiff was not wearing a seat belt in the front seat when supposed to and as a result sustained injuries in an accident caused by another driver, a jury will be entitled to consider the non-use of the seat belt because the jury is asked, “Was there negligence by the plaintiff or by the other driver in causing the injuries?” There could be, however, a situation in which a jury might say, “You know, even though it was the defendant’s fault by running that stop sign since the plaintiff wasn’t wearing his or her seat belt … ” and put most of the blame on the plaintiff because the victim could have easily prevented the injury. All in all, wear seat belts!

Another jury may say, “Well, now we’re going to put most of the blame on the person who actually caused the collision.” That’s why wearing a seat belt is, of course, important for your health because of the mayhem that goes on in the roads today, but it can be used as a possible element of comparative negligence. In a lawsuit, a plaintiff will be asked interrogatories, which are written questions that a party has to answer under oath, such as, “Was there a seat belt that was available and fully functional that was applicable to the seat where you were sitting?” If it’s the plaintiff’s vehicle, the plaintiff usually will answer, “Yes, to the best of my knowledge.” A person doesn’t really know if the seat belt is fully functional, but he or she would have to answer to the best of his or her knowledge.

Update: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.

Related:
What Happens When You Fail to Use a Seatbelt and Are Involved in a Florida Car Accident?

Q: Can A Defendant Prove That I Wasn’t Wearing A Seatbelt?

A: The plaintiff in car accident cases is always asked in a deposition if any part of his or her body hit the interior of the vehicle. Sometimes a plaintiff will say that, yes, he or she was wearing a seatbelt, but the defendant will use experts in motor mechanics to claim that the plaintiff was not because certain injuries would not have occurred if a seat belt had been worn. This expert will be able to testify that, “Well, the plaintiff testified that this part of his or her body hit the interior of the vehicle, and that wouldn’t have happened had the plaintiff been wearing a seat belt.” It is a fruitful area for comparative negligence.

Update: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.

Related:
Not Wearing A Seat Belt and Hurt in a Florida Car Accident: Can You Receive Compensation?

Q: Who Decides If I Was Negligent?

A: Let’s say a defendant ran a stop sign and caused an accident contributing to the cause of multiple injuries. The jury is first asked, “Was there negligence on the part of the defendant which was a cause or a legal cause of the injuries?” If the answer to that is yes, the next question would be, “Was there negligence on the part of the plaintiff in the failure to wear the seat belt?” The jury might say, “No, it isn’t negligent to wear a seat belt,” despite the fact that there’s a statute. The statute, which explains the requirement of a seat belt while operating a motor vehicle, is read to the jury, but the jury is told that they can consider the statute in making a decision as the statute is not conclusive. The jury needs to decide what reasonable care is.

In most cases, a jury’s going to say, “Yes, reasonable care of a person riding in the front seat of a car requires wearing a seat belt these days,” because of a seatbelt’s effectiveness in preventing injuries. So, yes, it’s important to wear your seat belt and know that you might sustain more injuries by not wearing one than you would have otherwise sustained had you been wearing a seat belt.

Related:
Fault, Blame, and Damage Claims: Contributory Negligence in Florida

Q: What Is The Comparative Negligence Or Comparative Fault Law In Florida Personal Injury Cases?

A: Florida’s comparative negligence or comparative fault laws have evolved over the last several decades. It formerly explained that if a plaintiff sued two defendants, and one defendant was 1% at fault and another defendant was 99% at fault, then the plaintiff could recover all of the damages from the one defendant who was 1% at fault, which was a little unfair. It also used to be that if a plaintiff sued and the plaintiff himself/herself was 1% comparatively, but the plaintiff couldn’t collect the pay.

Update: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.

Related:
Does Fault Impact Damages in a Florida Car Crash?

Q: How Has Florida’s Negligence Law Changed?

A: The previous negligence law was called pure contributory negligence, but it was rather unfair that other parties as well as the plaintiff would be at fault but the plaintiff was unable to recover any amount from his or her injuries because he/she had to contribute a small amount to the accident and the injuries. Well, several years ago, the liability of a person whether a plaintiff or defendant became determined solely by the percentage of negligence or the percentage of fault that was assigned by the jury or the judge to that party.

Q: Give Me An Example Of Comparative Negligence Under Florida Law

A: Update: Florida replaced its pure comparative negligence system with a modified comparative negligence system. Consequently, a personal injury victim can now recover in proportion to the defendant’s percentage of responsibility only if the victim’s own share of responsibility is 50 percent or less. If the victim bears more than 50 percent liability, the victim cannot recover from the defendant.

Q: What Are The Rights And Obligations Of Pedestrians In Florida?

A: Operators of motor vehicles by statute have the obligation to operate the vehicles in such a manner with exercising reasonable care to avoid striking another vehicle or pedestrian, but that doesn’t mean that a pedestrian always has the right of way. A pedestrian has the obligation to use reasonable care for his or her safety, just as a motorist has the obligation to drive the motor vehicle, exercising reasonable care. A pedestrian in Florida could be not only a person walking but also a bicyclist.

Related:

Hit By a Car: Pedestrian Accidents in Florida

Q: Do Pedestrians Have To Obey Traffic Control Devices?

A: Pedestrian has the obligation to obey traffic control devices. Many people think that once a pedestrian is in a crosswalk, they automatically have the right of way. If a pedestrian is attempting to cross the street, he or she must obey the traffic control device or the ‘walk, don’t walk’ sign that might exist on the other side of the street. Just because a pedestrian walks into a crosswalk, it doesn’t automatically mean he or she has the right of way.

Related:

As a pedestrian crossing the street, do I have to duty to avoid a car accident?

Q: Give Me An Example Of A Pedestrian Being At Fault For Their Injuries

A: Pedestrian accidents are all too frequent and all too common in Florida. A person might be walking on the sidewalk and a driver pulling out of a side street, a store, or a shopping center might be looking at traffic coming from the left and notice a pedestrian on the sidewalk coming from that motorist’s right. Although the pedestrian has a right to be on a sidewalk walking in a certain direction, the pedestrian must take into account that the motorist is looking the other way and the pedestrian is not in the driver’s field of view. In this such case, the pedestrian must take his or her own precaution to make sure that he doesn’t turn at the time when you’re right in front of the vehicle, because you could be found at fault even though the driver of that motor vehicle will also be found at fault.

Pedestrians have obligations to follow traffic control devices, to follow the ‘walk’ and the ‘don’t walk’ signs, to comply with the red, yellow, and green signals when trying to cross the streets, just in the same manner as a bicyclist pass through. Unfortunately, there are serious injuries that result from pedestrian accidents because a car is actually striking your body as opposed to a car on car accident in which you might sustain an injury while in the car.

There are indeed Florida laws governing pedestrian movements. They are complicated, but you need to understand that pedestrians don’t get free rain. If you’re injured as a pedestrian, the judge will tell the jury that you, as a pedestrian, have the obligation to exercise reasonable care for your own safety. You can be assessed comparative negligence at times in Florida car crash cases.

Q: Tell Me About Demand Letters.

A: It’s always better to try and resolve a case before a case is in court because both the expenses and the stress are less. A year after an accident, a lawyer may try to settle the case without filing a lawsuit as the plaintiff is undergoing treatment for injuries, which could take a long time, perhaps more than a year. At some point in time, however, after the plaintiff has substantially completed all treatment, the lawyer will sit down with the plaintiff and will talk to him or her about a demand letter that he or she intends to write.

The demand letter is a letter that some lawyers make either very detailed or very short to explain a little bit about the accident to the insurance. Why? This mission was to describe who’s at fault or statements why the person is at fault. A typical lawyer believes that the insured of the insurance company is at fault, and proves so by providing a medical record showing that a plaintiff’s medical condition, both in the past and the future. What do I like to do with my demand letters? I like to be straightforward, in which I write the demand and my credibility on the issue, carefully avoiding anything that could mislead the adjuster.

Q: What Should You Say In A Demand Letter?

A: Insurance companies have become very sophisticated over the last 15 years. While they don’t have your medical records from another accident, unless maybe it’s with the same insurance company, they utilize the cross-reference technique and know if you’ve been in other accidents. If you didn’t have prior accidents, but you’ve had a similar type of injury, insurance companies will be aware of it. I think the adjusters appreciate kinder on the part of your lawyer, but if they could see that you’re a strait-laced person not trying to pull anything over their eyes, a rapport can be established.

The adjusters actually try to pay as little money as possible and save as much money for the insurance company. The insurance adjuster really doesn’t care much about you as a person, but they’re probably more interested in settling the case.

I would like to give a brief synopsis of what happened and why the defendant even knew of the dangerous condition and/or how he created the dangerous condition. Sometimes a person does receive medical treatment for several days after an accident, which does make the case a little bit more difficult, but the person was embarrassed at the scene, shocked at the scene, felt some pain at the scene and shortly thereafter.

As the days progressed, the condition of the defendant increasingly got worse, so it is important to explain that to the adjuster. Although he or she has heard it before, you can allow him or her to take your statement and meet your client in some type of informal statement (one not transcribed), and ensure that the client comes across is credible to assist in getting the case settled. Many times, people in demand letters ask for an unrealistic amount of money. That’s just going to set the turn of law.

Related:
How do I write a demand letter for personal injury without hiring a lawyer?

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Q: How Much Should You Ask For In Your Demand Letter?

A: You should seek the counsel of a lawyer before a demand is sent. Of course, a lawyer will advise you to demand substantially more than you’re willing to accept for your injuries, but it is important that you are not asking for a ridiculous amount in which the adjuster might say, “Listen, we’re not even going to negotiate.” Certainly, you want to start negotiations from a high level, and the adjuster knows that you’ll be asking for a lot more than the claim is worth, but it may not be a good idea to ask for three, four, five times more than you might end up settling for. If it’s a case with soft tissues or even a fracture that heals and heals nicely, starting with a demand of $500,000 on a case like that is going to be counter-productive and your claim probably won’t get settled.

Related:
Florida Car Accident Compensation Law

Q: Should You Include Your Medical Records And Medical Bills With Your Demand Letter?

A: You should include the medical records and the medical bills in the demand. If you have health insurance, then include the amount of the health insurance payout, because you probably have to pay your health insurance company back some or all of its money. If Medicare is involved, you have to provide the Medicare paid amount. You could provide prior medical records especially if you sustained a similar injury in the past, hopefully, to show that you got better from that injury. Moreover, if you have photographs of your injuries, you could turn over the photos if your lawyer thinks it will help your case get settled.

Some lawyers don’t believe you should include your prior medical records especially if they show the same or similar injury or complaint in the past. If the insurance company knows there’s been some prior accident, then they believe that you’re not going to be able to get the case settled because they will want to review those prior medical records before they engage in settlement negotiations.

In my experience, it is usually best to be kind and upfront with the adjuster in order to obtain a fair and reasonable settlement for your injury claim. That’s just the philosophy that I take from my years of negotiating with insurance adjusters. You should hold your head up high and deal with the facts as you have them, and if the insurance company won’t settle after reviewing your claim, then you will need to find a personal injury lawyer who is willing to litigate your personal injury claim.

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

Q: Tell me about neck and back injuries that were caused by a car accident and how to prove fault.

A: The most common type of personal injury claim in Florida is a car accident claim. The most common type of injuries alleged to or occurred from a car accident are injuries to the spine, lumbar spine (lower back) or the cervical spine (upper back). Unfortunately, proving injuries to the cervical spine or the lumbar spine is very difficult in Florida car accident cases. In fact, proving who caused an accident is easier to do than it is to prove an injury.

Related:
How do you prove your back injuries if you were in a rear-end car accident in Florida?

Q: How Do You Prove Who And What Caused Your Car Accident?

A: A lot of car accident-related neck and back injuries result from rear-end car collisions when someone is sitting at a red light or a stop sign and is hit from behind, or when someone was slowing for traffic, and the vehicle behind does not notice that the traffic has stopped and therefore crashes. Causation in those cases isn’t that difficult to prove.  There are, however, many car accident cases that involve speed and failure to yield the right of way in which liability is not clear. Sometimes, eyewitnesses can testify in the case, but other times, the situation is much more difficult. There are times when you may have to hire accident reconstruction experts to prove causation, such as when you need skid marks examined or to find out the speed of the cars involved in the crash.

An accident reconstruction expert takes all of the available facts—which can include the size or length of the skid marks, the damage to each vehicle, and other physical evidence—and will evaluate and try to figure out what occurred as well as at what speeds the vehicles were traveling before the time of impact. By utilizing an event data recorder, common in many cars, accident reconstruction experts have an easier time figuring out the case. Oftentimes, these experts come to conclusions based upon physics and mathematical formulas. These techniques give insight into the speed of the vehicle before the brakes were engaged and before the skid marks were created as well as the speed at the time of the impact. All of these pieces of information determine if someone was speeding and if his or her speed might have been the cause of the accident.

In serious crashes, more often than not you have to hire an accident reconstruction expert to help you determine who is at fault in causing the crash. The accident reconstruction experts are extremely expensive. In soft tissue cases in which there is a bone fracture but not many economic damages (i.e. lost wages), it may not be worth it to hire an accident reconstruction expert; however, don’t worry as the insurance company has unlimited resources. It might hire an accident reconstruction expert or it might hire a biomechanical engineer, who may or may not be permitted to testify and talk about the speed upon impact and how this speed would be impossible for the person to have sustained a herniated disc in the neck or back, for example, as a result of the collision.

Remember, when you sue someone who has bodily injury liability insurance for a personal injury or when you make an injury claim against that person, the insurance company will undertake the necessary defense and the investigation. If it’s Allstate, State Farm, GEICO, United States Automobile Insurance Company, or Liberty Mutual Insurance, then be sure to remember that each company has billions and billions and billions of dollars behind it. Although insurance companies don’t spend money needlessly, these companies are not afraid to spend money when they know they can get the best that money can buy. These companies will go to great lengths to acquire highly qualified people to testify to whatever they want them to testify because of the pecuniary or financial gain that many experts stand to reap. Now, there are obviously honest experts, but, sometimes, the promise of financial gain is just too much to ignore.

Related:
Was Your Car Accident Caused by a Bad Road Design or Flawed Maintenance?

13 Ways You Can Cause a Car Accident In Florida

Q: What Makes Back And Neck Injury Claims Hard To Prove?

A: In most cases under Florida’s automobile accident law, when a Florida resident is involved in a car accident and he or she wants to sue the driver at fault to recover compensation for pain and suffering, disability, scarring and disfigurement, loss of capacity for the enjoyment of life, non-economic damages, he or she needs to convince a jury that he/she has sustained at least one permanent injury within a reasonable degree of medical probability. Only a medical doctor (and sometimes a chiropractor) can testify as to what is a permanent injury.

If a Florida driver is involved in a rear-end collision, proving who and what caused the accident isn’t difficult. What is difficult, though, is proving that the collision caused the victim to have a permanent neck or back injury, especially in those cases where there’s no surgery or no immediate complaints of pain, which happens frequently.  Normally, at the scene of the accident, the victim’s adrenaline is flowing so they don’t immediately feel the pain or the injuries may not immediately manifest themselves. It may take hours or even days for the injury as well as the pain to become apparent. In this case, the insurance companies almost invariably say, “Okay. We believe that the injury did not arise for a couple of days, and that means the injury is only a sprain or only some type of soft tissue injury that should last no more than three to six weeks.” Such statements are compelling arguments, especially in cases in which there’s not a lot of property damage, yet even though cars these days are built fairly well, the body inside the car isn’t designed to withstand the same forces or impact of the car itself. Your body is not as strong as the frames of these vehicles. So, if you have substantial property damage, it can help your claim that you incurred some type of trauma that is compensable.

Related:
What Happens If My Car Accident Injuries Don’t Show Up Right Away?

Q: Tell Me How To Prove A Neck And Back Claim Are Related To A Car Accident.

A: The earlier you get treatment for your back, the more likely the case could be settled. It’s important for you to seek orthopedic care from a surgeon for your neck and back. It’s also important for you to seek chiropractic care if the orthopedic tells you to do so. Too many people first go to a chiropractor for their neck or back injury; however, it’s more prudent to see an orthopedic surgeon, even though some lawyers think differently on this issue. Also, it is important to have diagnostic testing completed as soon as possible after the accident.

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Q: What Should I Tell My Doctor About My Pain And Suffering?

A: It’s important to tell your doctor about all of your neck and back complaints, including complaints about any radiation or pain or discomfort that goes into either of your arms or legs, because that can be evidence of your injuries. It could be evidence that you not only have muscle spasms but also have some type of nerve problem, such as a nerve root problem in your neck and back. Pain in the neck or back could be indicative of a cervical herniation, which refers to a herniated disc in your neck, or a lumbar disc herniation, which is a herniated disc in your lower back.

Q: Will X-Rays And MRIs Help With My Back And Neck Injury Claims?

A: At some point in time, if your complaints persist, a doctor will probably order that you undergo a magnetic resonance imaging, or MRI, scan of your neck, your back, or both, depending upon your complaints at the time. MRIs show more than an x-ray as an x-ray will just show the bony structures, but not the disc. The MRI can show if there’s a herniation or if there is bulging in your neck or back.

If the disc sticks out and comes out of place, and starts impinging upon the nerve roots coming out of the spine, that is when you can get substantial pain and discomfort that goes from your neck into either or both of your arms, and/or either or both of your legs. However, it is very difficult for a radiologist, an orthopedic surgeon, or neurosurgeon, all trained in reading MRIs, to actually say that a herniated disc came from a specific traumatic event, such as a car accident.  That’s what makes proving permanent injuries to your neck and back very difficult in Florida.

Related:
Rear-End Collisions In Florida

How do you prove your back injuries if you were in a rear-end car accident in Florida?

Q: Is It Difficult To Prove A Permanent Neck Injury?

A: If you have some prior or pre-existing pathology or pre-existing issues with your neck or your back, it will be even more difficult to prove a permanent injury to these areas. You may have gone to the doctor or chiropractor either from another car accident or from something else years in the past.  In that case, it is then your burden to show that you have had a permanent aggravation of a pre-existing condition. MRIs and x-rays show longstanding changes in your spine, neck, and back, which may not have caused you any pain, but exhibit characteristics associated with aging.

So, many times, the insurance company will hire a radiologist or orthopedic doctor to read the scans that had been taken of you. The doctor will say, “The neck MRI here shows a herniated disc or a bulging disc indeed, but due to certain features, it is obvious that this injury was longstanding existed way before this accident.” Statements like such make these cases very difficult. You know you’re fine right before the accident. You know that the accident caused you an injury that hasn’t gone away and probably won’t ever go away; proving it to a jury is another story.

Related:
Why is it hard to get a settlement in a rear-end car accident claim?

Q: Tell me about mental anguish damages or claims.

A: Generally speaking, personal injury claims involve compensatory damages. There are economic damages, which are medical expenses and lost wages as well as any sort of lost services. On the other hand, there are non-economic damages. One of the types of non-economic damages is mental anguish. There’s also pain and suffering, disability, disfigurement, and other things that the jury evaluates, “How has this particular injury affected your life, affected your ability to enjoy your life?”

Sometimes bodily injuries, especially severe ones, cause a person mental anguish. A person will go see a social worker, psychologist, or psychiatrist if he or she can’t cope with the impact of the injury or needs the guidance of a mental health provider. Many times, the medical expenses are part of the claim, and the psychologist or psychiatrist will testify that because of the trauma the individual now has some type of post-traumatic stress disorder or depression. Oftentimes these diagnoses come due to the inability of the individual to lead the life that he or she did before the incident or because he or she is not able to support his or her family and feels not as valued as he or she was in the past.

Related:

How Do You Recover Emotional Distress Damages in Florida?

Q: Is There A Problem With Making A Mental Anguish Claim?

A: Now, there’s one caveat with mental anguish claims. If you are going to claim that you have had to seek mental health counseling, like a psychiatrist, psychologist, or any other professional, because of you have developed depression as a result of an accident, you are opening up the floor to discussion about any prior treatment that you’ve had with psychiatrists or psychologists. Many times, a patient or plaintiff will say, “I don’t care. I’m an open book. I understand,” because a defendant that you’re suing in a lawsuit is entitled to find out about your medical history. If you’re claiming depression or post-traumatic stress as a result of injuries sustained in a slip and fall or a car crash or because of a defective product or medical malpractice, you are entitled to explore to what extent you’ve had that same or similar condition in the past.

Many times you’ll go see the same psychiatrist or psychologist, and that psychiatrist or psychologist will testify that you’ve aggravated or exacerbated your underlying depression, post-traumatic stress, or whatever psychiatric condition you had. However, there are some times when a plaintiff injured in an accident has previously seen psychiatrists and psychologists for other very sensitive reasons, such as something of a sexual nature or anything else that he or she won’t want disclosed; yet, in the lawsuit, the judge is going to say, “Plaintiff, if you’re claiming mental anguish and that you’ve seen a psychiatrist because of this accident, it’s only fair to get prior psychiatric records disclosed in the lawsuit to review them.”

There have been instances I’ve had in my practice in which a plaintiff has said, “I will forget about my claim for mental anguish and seeing a psychiatrist because I do not want these prior psychiatric records disclosed. It’s too sensitive of a nature. It’s too embarrassing. I don’t want it.” As a result, there is case law in Florida that says if you’re claiming mental anguish, prior psychiatric or psychological records are discoverable by the other side. The prosecuting team is entitled to get its hands on these records.

If you don’t want your records to be produced, then you have to drop your claim for mental anguish, but you do not have to for your bodily injury, pain and suffering, inability to lead a normal life, loss of enjoyment of life, disability, scarring, and disfigurement. The reason for doing so is to prevent the insurance company, business establishment, or whoever you’re suing to find out about your preexisting mental condition.

Q: Tell Me About Scarring And Disfigurement Claims And Injuries.

A: Scarring, which causes some type of disfigurement, is another common type of personal injury that results from a car accident, and in some instances from a slip and fall. These injuries sometimes can be one of the most serious with long-lasting consequences; even if these injuries do not directly affect a person’s functional ability, the body is permanently changed as a result.

In Florida automobile accidents, if the only injury a person sustains is scarring or disfigurement, then in order to recover for the pain and the suffering and the mental anguish, a jury needs to find that the scarring or disfigurement is not only permanent but also permanent and significant. Significant isn’t defined anywhere, so it’s in the hands of the jury to make a decision as to what is a permanent and significant scar or is permanent and significant disfigurement.

For example, if a 75-year-old male is injured in some type of car accident involving broken glass and he sustains a cut on his finger that leaves a little scar tissue and a little mark, a jury could easily find the injury is not significant. If a jury doesn’t find the scar is significant then there will be no entitlement to recover money for his pain and suffering.  The key here is the scarring must be significant.

Q: What Is Significant Scarring Or Disfigurement?

A: The question of significant scarring or significant disfigurement will depend upon where on the body the scarring or disfigurement is located, the age of the person, and undoubtedly the sex of the person. For example, I represented someone who was bitten by a dog and needed to get shots and other treatments. Ultimately, he was left with three permanent dots on his leg, yet since he has many other brown marks on his leg from the aging process, it is really difficult to tell what are the bite marks left by the dog.

In this case, my client had $300 in medical bills so when he received an $8,500 offer directly from the other person’s pocket because there was no insurance, I urged him to accept the offer because he’s a 61-year-old man who has these marks, yet you can’t even tell they’re from a dog bite. However, if a young girl is scarred, then the evaluation of the case is different.

In another case, I am representing a young girl who was riding in a golf cart and was hit from behind by a vehicle. When she went flying in the air, she was lucky that her rear-end wound up hitting a guardrail that prevented her from falling into a canal. She has a horrible 6-inch scar on her backside that has needed surgery and that will require future surgery. She’s a thin girl and she lost a lot of the fatty tissue around the scar, so now her rear end is concaved to a certain extent. There’s no doubt for her to prove that her scar is permanent and significant. A jury would certainly find that she has permanent and significant scarring, especially since she’s a 16-year-old girl who likes wearing bathing suits and who did aspire to do some modeling.

Q: What Is The Problem With Receiving Compensation For A Scarring Claim?

A: The problem with scarring and disfigurement damage is, whether it’s from car accidents or other types of accidents, placing a value on the cases. Now, if it’s just horrible disfigurement, in which a person’s face is severely damaged to the point where you can’t recognize the person, obviously, there’s a huge value to that claim. That’s an extreme example, but in a normal case in which there is a permanent scar that might need future treatment, but doesn’t affect the person’s learning ability or activities, placing a fair value for the injury is difficult. Again, the value of the claim is dependent upon the age of the person, the sex of the person, and whether the scar really bothers the person.

In another case, I represented a woman who an active member of the military years ago. She got out of bed and sustained a nasty scar because of a sharp bed rail. The bed rail was ridiculously sharp, about 10 inches long, and she was embarrassed about it at the beginning. By the time the case was over, she was telling me she thought that it—the scar—was cool. It wasn’t what I expected… you know. She didn’t lie about it. This statement was after her deposition while we were going to trial, but when I got her a reasonable settlement offer I said, “Listen, if you think this is cool and it doesn’t bother you, even though it’s ugly and doesn’t look good,” I said, “we have to settle that case,” so we settled the case.

Q: Please Explain Bulging And Herniated discs.

A: In order to understand bulging and herniated discs, you need to understand a little bit of the anatomy of the spinal column. The neck area is referred to as the “cervical area.” Below the neck, the middle part, toward the low back area is called the “thoracic,” and the lower back area is called the “lumbar area.” There are also the vertebrae, which are the bones that you commonly see in an X-ray of the spine, and between those bones, there’s disc material. The middle part of the disc is called the “nucleus pulposus,” and the outer part of the disc is called the “annulus fibrosis.” Look at the disc as like a jelly doughnut. The outside area is the annulus fibrosis, and the jelly, the in part, is the nucleus pulposus. When these discs peek through the vertebra, referred to as a hernia, there can be serious problems. As people age and the body wears and tears, the water in the disc starts to slowly escape, causing the disc to become a little dehydrated, which consequently results in hernias in the discs.

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Q: Is There A Difference Between A Bulging Disc And A Herniated Disc?

A: A herniated or bulging disc can also be trauma or accident-related. Doctors will vary in terms of what is a bulging disc is versus a herniated disc is. It’s all a matter of semantics. Most doctors will say a bulging disc is when the jelly-like material, the nucleus pulposus, comes outside the doughnut itself. It’s all a matter of degree. When the disk is herniated, the middle part is much further out; when it’s not that far out, it’s called a “bulging disk.” Nonetheless, bulging and herniated discs can cause no symptoms whatsoever or they can both cause serious symptoms if they’re pressing on the wrong thing.

Q: What Makes Disc Injury Claims Difficult To Settle?

A: Proving that trauma caused a herniated or a bulging disc is very complicated and requires a medical doctor and radiologist to review MRIs as well as orthopedic surgeons and prior medical records to prove the injury was caused by the car accident, slip and fall accident, or whichever accident is involved in that particular case. Moreover, you must prove that the herniated or the bulging disc is pressing on the nerve roots or on the spinal canal, which is causing some inflammation and damage, as pain is evident down your arm or your leg.

Related:

Did You Delay Seeing A Doctor Because It Didn’t Hurt That Bad At First?: The Case Of The 5 Month Back Surgery Delay

Q: What Do You Need To Do To Prove Your Back Injury Claim?

A: Some studies show that 30%, 40% of people over 40 years old have herniated discs and don’t even know it because these herniated discs aren’t hitting anything and therefore not causing any symptoms. In order for you as the plaintiff to prove that there’s a causal relationship between the accident and the herniated disc, he or she will need expert medical evidence. You will need to provide clear and accurate medical history. You must be honest about whether or not you’ve had preexisting problems in that area and ever seen doctors beforehand because even if you have, you can recover money for aggravation of an underlying condition if this has made the condition worse.

To have any chance of getting money from a jury, the jury needs to feel confident that both you and your doctor are straightforward with them and not making any outlandish claims. Herniating and bulging discs are injuries that many people claim in accidents, but unfortunately, they’re probably the most difficult to prove because many times there’ll be an accident and someone will be in pain. An MRI of the lower back or the neck will be ordered, and it will show multiple herniated discs. Therefore, it’s difficult to sustain multiple herniated discs in one particular trauma, which would lead to the conclusion that they were probably in existence beforehand, but there is a possibility that your doctor could testify that one or more of the discs was aggravated and now you’re having symptoms that you didn’t have beforehand.

Q: Can You Recover Damages For An Aggravation Of An Underlying Back Condition?

A: Yes, you can recover for aggravation of the underlying condition or activation of the underlying condition; however, a preexisting condition does not necessarily prevent you from recovering. A jury is supposed to apportion what existed beforehand as well as what the accident in question caused. Nonetheless, back conditions are very difficult to correct. Sometimes they require surgical procedures. Oftentimes, doctors will remove the entire disc material out and fuse the two vertebrae together so as to completely get rid of a disc.

The issue, though, is determining whether or not this surgery is related to the accident that is involved in the particular lawsuit. It is also important that you are confident that the insurance company will hire a doctor who will say, “No, the surgery wasn’t needed because of that trauma. It was all because of preexisting conditions that were there before the trauma.”

Related:

Pre-Existing Injury: How It Can Impact Your New Personal Injury Claim

How Do Florida Juries Decide Damage Awards When The Victim Has A “Pre-Existing Condition?”

Q: Tell Me About Lost Wages Claims.

A: When someone is involved in an accident and they sustain personal injuries, one of the elements of economic damage that one can claim is lost wages. The umbrella of lost wages doesn’t just mean wages lost immediately after an accident; it also encompasses what lost wages might occur in the future because of a continued inability to work, or a continued inability to work as much, or an inability to maybe get a promotion because of an injury, or advance yourself because of an injury. That’s called “loss of earning capacity.”

Related:

Lost Wage Claims in Florida Injury Cases: What You Need to Know

Q: What Type Of Lost Wages Can I Recover?

A: You can recover the actual lost wages that you could prove, such as a loss of ability to earn money or loss of earning capacity, in the future. What do you need to prove that? Let’s say you’re a construction worker involved in an accident and you sustain a bad shoulder injury. You’re out of work for—let’s say—five months. At this time, you do not receive your average weekly wage or any benefits. When you return to work, though, you can only be a part-time worker or work in fields that require lighter duties. In this case, you are returning in another capacity and, therefore, you can claim the difference between your work experience before the accident and your work experience after the accident.

Related:

Lost Wages Claims When You Work On Commission

Q: What Is A Loss Of Earning Capacity?

A: There are some injuries that you sustain that prevent you from being able to generate higher wages in the future. For example, before the accident, you intended to apply for a certain promotion and a raise and you probably would have gotten it, but now you are unable to perform the tasks associated with that new position.  To claim this type of lost wages, you will need the testimony of your fellow workers or supervisors to explain that because of your injury, you are unable to apply for the new position because you no longer qualify. You could have made $40 an hour if you had gotten this advancement, but due to your injury, you stay working at $30 an hour. You can, though, recover that $10-an-hour difference plus whatever benefits were associated with that.

Again, it’s not automatic. You have to convince a jury that you would have gotten the job because you were highly qualified. Moreover, you must also utilize the testimony of people with whom you’ve worked to claim the loss of earning capacity. You would also need your employment records introduced as evidence to show that you’re doing quality work as well as your tax returns to show your earning history, or if you’re a 1099 person, what you have made.

Related:

Can You Have an Injury Claim for Lost Earning Capacity When You Don’t Have a Job?

Q: Common Problem With Lost Wage Claims

A: Dozens and dozens of times I get people with significant injuries who come to me, say, “I was making $60,000 a year and now I can’t make that. I’m making $10,000 a year.” I respond with, “Okay, well, just give me your tax returns and show it.” They say, “Well, I was a painter and I worked mostly for cash, and I didn’t report most of it.” There’s evidently a problem with the loss of wages in this case, but there is no way to prove it. It’s the client’s decision to move forward in the case, but I always strongly urge the client, who has not reported taxes or not reported a substantial amount of their taxes, to claim lost wages or earning capacity. Even though it’s a big economic hit to the client, you don’t want the client to testify that “I made $60,000 last year, but the tax return showed $10,000.” Here, they’re basically subjecting themselves to criminal prosecution. Additionally, a jury is not going to like that statement, even though there are many people in the underground economy who don’t pay their taxes. It happens too often with waiters, waitresses, laborers, and with many other cash-paying jobs.  It’s terrible that when a bad injury occurs, these people can’t make a lost wage claim because they haven’t reported their income to the government.

Related:

Lost Wage Claims in Florida Injury Cases: What You Need to Know

Q: What Happens If I Am Making More Money Than I Did Before The Accident?

A: In some situations, you can still make a lost earning capacity claim. If you can show that you were unable to rise as far as you would have had you not been injured, then you can pursue the claim. There are also lost earnings that occur from the time you were hurt to the time of the trial and lost earnings or earning capacity that goes into the future.  These claims are all up to a jury to decide based upon the evidence that you and your lawyer will present in your personal injury lawsuit.

Q: Tell Me About Medical Expense Claims

A: Medical expenses in personal injury cases are recoverable as an element of economic damages. The law involving medical expenses has been evolving over the years. In a typical situation in which a person is injured in a slip and fall and needs to see a doctor for treatment, but he or she doesn’t have any health insurance to cover some of the medical bills, the medical bills he or she incurs are recoverable damages.

Related:

How Do I Pay My Medical Bills After a Florida Car Crash?

Q: What Is A Letter Of Protection?

A: Doctors ordinarily will make you, a patient, sign a “letter of protection,” in which you promise to pay the medical bills out of any settlement or any money you recover for your injuries.  Notwithstanding these letters of protection, doctors many times will negotiate what he or she is reimbursed depending upon how much settlement you received for your injuries.

Q: Will My Insurance Company Pay My Medical Bills If I Am Hurt And Can I Recover Them As Damages?

A: If you are hurt in an accident, your personal or employee based insurance will pay for your medical expenses. Also, PIP benefits are available to you if you are hurt in a car accident, regardless of whose car you are driving in at the time of the accident and regardless if you caused the accident. However, if you are suing someone for your injuries, you are not allowed to recover the medical bills that your PIP insurance paid as damages. Yet, you are entitled to recover the amount of any other medical bills that your PIP, or any other health insurance, hasn’t paid. The situation gets really complicated, though, when you have health insurance.

For example, if you work for an IBM factory, they have a plan governed by the federal statute known as “ERISA.” An ERISA policy has plan documents, which might entitle IBM or the insurance company for IBM to get every penny back regardless of how difficult the case is to recover damages. Sometimes IBM will negotiate with you and your personal injury lawyer. On the other hand, smaller plans or personal health insurance plans in Florida that pay your medical bills related to a slip and fall case are entitled to get back a fair amount based upon what you recover in your settlement or jury award. If causation is hard to prove or if you might be partially at fault for your injuries and you only recover 10%, 15% or 20% of the value of the case, that’s all the insurance company should be entitled to get back if it’s governed by Florida state law on reimbursement. If the plan is governed by federal law, then the law allows the company in some instances to get back all of their money, if they so elect.

Related:

5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim

Q: What Happens If Worker’s Compensation Pays My Medical Bills?

A: If you have a workers’ compensation case, in which your workers’ compensation insurance company has paid for your medical bills but you’re suing somebody else for your accident (not your employer) and you get a settlement, your workers’ compensation insurance company is entitled to get some of its money back. Usually, you will end up agreeing to an amount to reimburse the insurance company, but that amount depends upon the strength of your liability case.

Related:

Do You Have to Pay Back Your Insurance Company After An Accident Claim?

Q: What Happens If The Government Pays My Medical Bills When I’m Hurt?

A: Medicaid in most instances is entitled to get back 100% of the amount they pay. Occasionally it takes back a little bit less than that, but for a practical matter, Medicaid gets paid in full. The reason for that is these are public funds and the government wants to get its money back. It’s really unfair, especially if it’s a difficult case because in essence, the government is getting a free attorney to advocate on its behalf. Medicare, however, usually takes back about 60% of what it paid as a general rule.

Q: What Happens If I Go To Court And Ask For Medical Expense Compensation?

A: If you go to trial and are successful you are entitled to recover the reasonable value of medical bills you will incur in the future. That award is offset by your insurance benefits but nobody knows what’s going to happen in the future. You have to prove your future medical needs by having a doctor testify that based upon the accident you probably sustained a certain injury, and that injury and all the treatments have been reasonable and necessary to date, and that you will probably need treatment in the future. A doctor has to describe the treatment and the approximate cost of the treatment, and the jury has to believe the doctor’s testimony by the greater weight of the evidence in order to be awarded compensation for future medical expenses. However, many times, there’s a conflict. The insurance company or the defendant’s doctors will come into court and testify that certain treatment is not necessary in the future, or that it’s not related to this accident, or it would have been needed anyway, separate and apart from your injury. Thus, there is a conflict between what your doctor testifies to as to your future medical expenses and what the defendant’s doctor says on the issue, which is why these issues are sent to the jury to decide; the jury decides whom and what to believe about your future medical care. Then, if any amount of future medical expenses or lost wages is awarded, the judge instructs the jury to reduce that award to the “present value” of the dollars awarded.  Expert economists are hired to say, “Okay, these future damages for lost wages and medical expenses are equal to this amount in today’s dollars,” meaning the day of the trial.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

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