Anthony J. Milano

If you’ve been injured in an accident due to someone else’s negligence in Arizona, you may be entitled to compensation for your losses. While economic damages like medical bills and lost income are straightforward to quantify, pain and suffering compensation is more complex.

Understanding how pain and suffering is calculated in Arizona personal injury cases is essential for maximizing your claim. Below, we’ll break down the factors that influence these damages, how they are determined, and what you can do to ensure you receive fair compensation.

Types of Damages in an Arizona Personal Injury Case

In Arizona, personal injury damages fall into two primary categories: economic and non-economic damages.

Economic Damages

Economic damages are the quantifiable financial losses directly resulting from an accident, such as:

• Medical Expenses – Hospital visits, surgeries, rehabilitation, physical therapy, and medications.
• Lost Wages – Compensation for the income lost due to the inability to work.
• Loss of Future Earning Capacity – If the injury affects your ability to work in the future.
• Property Damage – Costs associated with repairing or replacing damaged property (e.g., a vehicle after a car accident).

Non-Economic Damages (Pain and Suffering)

Non-economic damages compensate for the intangible effects of an injury, including:

• Physical Pain and Suffering – Ongoing pain, discomfort, and physical limitations caused by the injury.
• Emotional Distress – Psychological trauma, including anxiety, depression, PTSD, and stress.
• Loss of Enjoyment of Life – Inability to engage in hobbies or activities previously enjoyed.
• Loss of Consortium – Compensation for a spouse’s loss of companionship and support.

How is Pain and Suffering Calculated in Arizona?

A common misconception is that Arizona courts or insurance companies use specific formulas, such as the multiplier method (multiplying economic damages by a number between 1.5 and 5) or the per diem method (assigning a daily dollar value to pain and suffering). However, these are not official calculations used in Arizona personal injury cases.

Instead, pain and suffering compensation is determined through insurance negotiations, legal arguments, and, if necessary, jury decisions. Insurance adjusters and attorneys assess factors such as the severity of injuries, medical treatment required, and the overall impact on the victim’s life.

How Insurance Companies Assess Pain and Suffering in Arizona

Before trial, insurance companies rely on claims adjusters and specialized software like Colossus or Claims Outcome Advisor to evaluate settlements. These programs analyze medical records, billing codes, and injury severity to estimate compensation. However, these tools often undervalue pain and suffering, making it crucial to have an experienced Arizona personal injury attorney negotiate on your behalf.

For minor injuries (e.g., whiplash, sprains), insurers may offer between $2,500 to $5,000 in pain and suffering damages. More severe injuries (e.g., herniated discs, fractures) may result in significantly higher settlements.

Insurance companies may also audit medical bills and attempt to reduce payouts by disputing treatment necessity. Working with an attorney ensures that your claim is fully valued and not arbitrarily reduced.

Pain and Suffering Compensation at Trial

If a settlement cannot be reached, the case may go to trial, where a jury or judge determines a fair award based on evidence, such as:

• Medical records and doctor testimony
• Personal statements from the injured party
• Expert witness testimony on long-term effects
• Family and friends’ accounts of how the injury has impacted daily life

Arizona law does not cap non-economic damages in most personal injury cases, meaning there is no preset limit on how much can be awarded for pain and suffering. However, the comparative negligence rule applies, meaning your compensation may be reduced if you are found partially at fault for the accident.

In Arizona, calculating pain and suffering damages does not follow a precise formula and is largely left to the discretion of the jury.

The damages for pain and suffering are considered a separate category from other types of damages such as medical expenses and lost earnings. The jury is tasked with determining an amount that reasonably compensates the plaintiff for the physical discomfort and emotional distress caused by the injury. See Allen v. Devereaux, 426 P.2d 659.

The Arizona courts have emphasized that there is no definite rule for estimating pain and suffering damages. Instead, the jury’s decision should be based on a reasonable and dispassionate consideration of the entire situation, avoiding sympathy for the victim or prejudice against the defendant.

The courts will generally not interfere with the jury’s award unless it is grossly inadequate or excessive to the point of shocking the court’s conscience. See Phoenix v. Brown, 88 Ariz. 60.

Additionally, Arizona law allows for the recovery of both past and future pain and suffering, aiming to make the injured party as whole as possible. See Wendelken v. Superior Court, 137 Ariz. 455.

The courts recognize the inherent uncertainty in quantifying such damages and thus rely on the jury’s good sense and unbiased judgment to arrive at a fair amount.

Factors That Can Increase Your Pain and Suffering Settlement in Arizona

Several factors can influence the amount you receive for pain and suffering damages, including:

1. Severity and Duration of Injuries – Permanent disabilities or chronic pain conditions generally result in higher awards.
2. Impact on Daily Life – If the injury prevents you from working or engaging in daily activities, compensation may increase.
3. Medical Evidence and Documentation – Thorough medical records, therapy sessions, and treatment plans strengthen your claim.
4. Expert Testimony – Statements from medical professionals or specialists can validate the extent of your pain and suffering.
5. Legal Representation – Insurance companies often undervalue pain and suffering; having an experienced attorney increases the chances of maximizing your settlement.
6. Arizona’s Comparative Negligence Law – Your compensation may be reduced if you share fault in the accident, making strong legal arguments critical.

Frequently Asked Questions About Pain and Suffering in Arizona

1. Is there a cap on pain and suffering damages in Arizona?

No, Arizona does not impose a cap on non-economic damages in personal injury cases, allowing victims to seek full compensation for their pain and suffering.

This is explicitly stated in the Arizona Constitution, which prohibits any law that limits the amount of damages recoverable for causing the death or injury of any person. See A.R.S. Const. Art. II, § 31 and A.R.S. Const. Art. XVIII, § 6. The Arizona Supreme Court has consistently upheld this principle, affirming that the amount of damages, including those for pain and suffering, cannot be subject to statutory limitations.

2. How do I prove pain and suffering in my case?

Pain and suffering can be demonstrated through medical records, personal journals, psychological evaluations, and testimony from doctors, family, and friends who can attest to how the injury has affected your life.

3. How long do I have to file a personal injury claim in Arizona?

The statute of limitations for most personal injury claims in Arizona is two years from the date of the accident. Filing after this deadline may prevent you from recovering compensation.

4. Can I receive pain and suffering compensation if I was partially at fault?

Yes, under Arizona’s comparative negligence law, you can still recover damages, but your compensation will be reduced by your percentage of fault.

5. Do I need a lawyer to get pain and suffering compensation?

While not required, having a personal injury lawyer significantly increases the likelihood of receiving a fair settlement, as insurance companies often try to minimize payouts.

Why You Need an Experienced Arizona Personal Injury Attorney

Navigating an Arizona personal injury claim can be challenging, especially when dealing with insurance companies that aim to minimize payouts. An attorney can help by:

• Gathering strong evidence to prove the extent of your pain and suffering.
• Negotiating higher settlements with insurance adjusters.
• Taking your case to trial if the insurer refuses to offer fair compensation.

At Milano Legal Group, we specialize in maximizing pain and suffering compensation for Arizona accident victims. With a track record of successful settlements and trial victories, we fight to get you the compensation you deserve.

Contact us today for a free consultation! Let us help you recover from your injuries and secure the financial support you need.

When facing a personal injury case, financial strain can be overwhelming. Medical bills, lost wages, and daily expenses can add up quickly. Understandably, many plaintiffs wonder whether their lawyer can loan them money to help with these financial burdens.

In Florida, however, the answer is clear: lawyers are prohibited from providing financial assistance to clients in connection with pending or contemplated litigation, with very limited exceptions.

Florida Bar Rules on Lawyer Loans to Clients

According to Florida Bar Rule 4-1.8(e), lawyers cannot loan money to their clients in personal injury cases. This rule explicitly states that attorneys are prohibited from offering financial aid related to litigation, except in two specific circumstances:

1. Advancing Court Costs and Litigation Expenses – A lawyer may cover these expenses, with repayment contingent on the case’s outcome.
2. Paying Court Costs and Litigation Expenses for Indigent Clients – If a client is financially unable to pay, an attorney may cover these costs outright.

Beyond these exceptions, providing financial assistance—including loans for living expenses—is strictly forbidden.

Why Are Lawyer Loans Prohibited?

The Florida Supreme Court has upheld this rule consistently, citing concerns that allowing lawyers to loan money to clients could create ethical and legal complications. The primary reasons for this prohibition include:

• Preventing Frivolous Lawsuits – If lawyers could fund clients’ personal expenses, it might encourage unnecessary litigation.
• Avoiding Conflicts of Interest – A financial stake in a client’s personal affairs could compromise an attorney’s judgment and loyalty.
• Discouraging Unfair Settlements – Clients receiving financial support from their lawyers might feel pressured to accept settlements that benefit the attorney rather than the client.

Court Rulings Reinforcing the Prohibition

The Florida Supreme Court has reaffirmed the prohibition on attorney loans in multiple cases, including:

• Fla. Bar v. Parrish, 241 So. 3d 66 – Highlighting that lawyers may not subsidize lawsuits by loaning money for living expenses.
• Fla. Bar Re Amendments to Rules Regulating the Fla. Bar, 635 So. 2d 968 – Emphasizing that attorneys should not advance personal funds or assist others in doing so.

These rulings have also led to disciplinary actions against lawyers who violate the rule, reinforcing the strict adherence required by the Florida Bar.

Alternative Financial Assistance for Personal Injury Plaintiffs

Although attorneys cannot provide direct financial assistance, injured plaintiffs do have options, including:

• Lawsuit Funding Companies – Specialized third-party lenders offer pre-settlement funding, which can be repaid from the settlement or judgment.
• Negotiating Medical Liens – Some medical providers may agree to defer payment until the case is resolved.
• Personal Loans – Plaintiffs may seek loans from financial institutions, family, or friends if needed.

Conclusion

In Florida, lawyers are strictly prohibited from loaning money to clients for personal expenses in a personal injury case, aside from advancing court costs and litigation expenses. This rule protects the integrity of the legal process, prevents conflicts of interest, and ensures fair settlements. If you are struggling financially while awaiting your case resolution, consider exploring alternative funding options such as lawsuit loans or medical liens.

If you need guidance on navigating your injury claim, give us a call to discuss your best legal and financial strategies.

When someone is injured due to another party’s negligence in Florida, they may be entitled to compensation for their losses. While economic damages like medical bills and lost wages are straightforward to calculate, pain and suffering damages are more subjective.

Understanding how pain and suffering is calculated in Florida is crucial for anyone involved in a personal injury case.

Below we will explore how pain and suffering is calculated in Florida personal injury cases, the types of damages you can recover, key factors that influence compensation, and strategies to maximize your claim.

But first let’s discuss damages that are recoverable in a personal injury case in Florida.

Types of Damages in a Florida Personal Injury Case

In a Florida personal injury case, damages are typically divided into two categories: economic damages and non-economic damages.

Economic Damages (Financial Losses)

Economic damages refer to quantifiable financial losses resulting from an accident or injury. These include:

• Medical Expenses – Hospital bills, surgeries, rehabilitation, physical therapy, and medication costs.
• Lost Wages – Compensation for income lost due to the inability to work.
• Loss of Earning Capacity – If the injury affects the victim’s ability to earn income in the future.
• Property Damage – Costs associated with repairing or replacing a damaged vehicle or other property.

Non-Economic Damages (Pain and Suffering)

Non-economic damages are more subjective and compensate for intangible losses, including:

• Pain and Suffering – Physical pain and discomfort caused by the injury.
• Emotional Distress – Psychological suffering, including anxiety, depression, PTSD, and trauma.
• Loss of Enjoyment of Life – Inability to engage in hobbies or activities previously enjoyed.
• Loss of Consortium – Damages awarded to a spouse for the loss of companionship and support.

What is Pain and Suffering in a Personal Injury Claim?

Pain and suffering refer to the physical and emotional distress experienced by a victim due to an injury. Unlike economic damages, which have clear financial documentation, pain and suffering is subjective and vary based on the individual’s experience.

• Physical Pain and Suffering includes chronic pain, discomfort, and physical limitations caused by the injury.
• Mental and Emotional Pain and Suffering involve psychological trauma, fear, insomnia, stress, and diminished quality of life.

How is Pain and Suffering Calculated in Florida?

Before we dive into the true calculation of pain and suffering in Florida, let’s first clear up a common misconception—one often found in quick Google searches or AI-generated responses—that the multiplier method and the per diem method are used to calculate it. They are not!

Let’s look at exactly what these two methods are:

1. The Multiplier Method

The multiplier method is where economic damages are multiplied by a number (typically between 1.5 and 5) based on the severity of the injury.

• Example: If your medical expenses and lost wages total $50,000 and a multiplier of 3 is applied, your pain and suffering damages would be $150,000.

2. The Per Diem Method

The per diem method assigns a daily dollar amount to the victim’s pain and suffering, which is then multiplied by the number of days they endure hardship.

• Example: If a daily rate of $200 is assigned and the victim suffers for 200 days, the total compensation for pain and suffering would be $40,000.

Courts and Insurance Companies Don’t Use these Methods

While the multiplier method and per diem method are often referenced in personal injury discussions, they are not actually used by insurance companies or courts in Florida when determining pain and suffering compensation.

These formulas provide rough estimates, but real-world settlements and jury awards depend on case-specific factors such as medical records, testimony, and the overall impact of the injury on the victim’s life.

In practice, pain and suffering compensation is determined through negotiations, sometimes using insurance claims software, between attorneys and insurers, and if a case goes to trial, a jury or judge ultimately decides the amount based on the evidence presented.

Calculating Pain & Suffering Before Trial

Before a trial—whether before or after a lawsuit is filed—negotiations with the insurance company typically take place. The claims adjuster will assess the value of your case based on various factors.

Large insurance companies often use claims software programs like Colossus, Mitchell Claim IQ, and Claims Outcome Advisor (COA) to determine settlement offers, particularly for soft tissue injury cases such as whiplash, sprains, and strains. The software takes into account medical billing codes, injury codes, and other relevant details to calculate a settlement range.

For soft tissue injury cases, low-level adjusters usually handle the claims. These adjusters are restricted from offering amounts outside the settlement range generated by the software unless new information is presented. Insurance companies vary in their reliance on this software, with companies like Allstate heavily depending on these settlement ranges. However, for more serious injuries, the software’s influence is less significant.

As mentioned earlier, pain and suffering fall under “general damages” and are factored into the software’s algorithm. The type of injury and the associated treatment significantly impact the calculation of pain and suffering, as well as the total general damages awarded. For instance, muscle sprains and strains generally result in minimal pain and suffering compensation.

For soft tissue injury cases, insurance companies often offer a modest amount—ranging from $2,500 to $5,000—on top of the total special damages (like medical expenses and lost wages). More serious injuries, such as herniated discs with nerve impingement and fractures, typically result in more substantial pain and suffering compensation.

Additionally, the insurance company usually audits medical bills using software like Mitchell Decision Point or applies an arbitrary factor, such as two times the Medicare rate. By reducing your medical expenses and undervaluing your general damages, the insurance company can effectively minimize the overall value of your injury claim.

The bottom line is that claims software often underestimates injury claims, failing to reflect the true value of pain and suffering that a judge or jury would award.

Jury and Judge Discretion

In cases that go to trial, the jury or judge will determine a fair amount based on the evidence presented, such as medical records, personal testimony, and expert opinions.

Factors That Maximize Pain and Suffering Compensation in Florida

Several factors can influence the amount awarded for pain and suffering in Florida personal injury cases:

1. Severity and Duration of Injuries

The more severe and long-lasting the injury, the higher the potential compensation. Permanent disabilities or chronic pain conditions generally warrant greater awards.

2. Impact on Daily Life

If the injury prevents you from performing daily activities, working, or enjoying hobbies, it strengthens your case for higher compensation.

3. Medical Evidence and Documentation

Thorough documentation of medical treatments, therapy sessions, and prescriptions can help prove the extent of your suffering.

4. Testimony from Medical Experts and Witnesses

Medical professionals and family members who can testify about your pain and emotional suffering can add credibility to your claim.

5. Comparative Fault Laws in Florida

Florida follows “Modified Comparative Negligence,” reducing compensation if the plaintiff is partially at fault. If the plaintiff is more than 50% at fault, they cannot recover any damages. Having a strong legal team can help minimize any reductions in your settlement.

6. Insurance Company Tactics

Insurance companies often try to minimize payouts by disputing pain and suffering claims. An experienced attorney can negotiate effectively to ensure you receive fair compensation.

Call Milano Legal Group for Help With Your Auto Accident or Personal Injury Case

If you’ve been injured in a car accident, slip and fall, or another personal injury incident in Florida, you deserve compensation for both economic and non-economic damages. Calculating pain and suffering can be complex, and insurance companies will try to reduce your payout. That’s why you need an experienced legal team fighting for your rights.

Why Choose Milano Legal Group?

• Experienced personal injury attorneys specializing in pain and suffering claims.
• Proven track record of maximizing compensation for victims in Florida auto accidents.
• No fees unless we win your case.
• We handle negotiations with insurance companies so you don’t have to.

Contact us today for a free consultation! Let us help you get the compensation you deserve for your pain, suffering, and financial losses.

On January 29th, 2025, American Airlines Flight 5342 collided mid-air with a military helicopter over Washington, D.C. The shocking accident raised numerous questions not only about the safety of air travel but also about the legal implications that follow such a tragedy. If you or a loved one were impacted, understanding how the law applies to this incident is crucial. This blog post will break down the key details of the incident and the legal principles at play.

The Incident: What Happened?

American Airlines Flight 5342, a domestic passenger flight, was traveling on a scheduled route when it collided with a military helicopter in the skies above Washington, D.C. The crash resulted in significant damage to both aircraft and tragically led to 67 fatalities. Emergency responders quickly arrived at the scene, and investigations have since been launched to determine the exact cause of the mid-air collision.

While investigations are still ongoing, the crash is believed to have been caused by poor visibility, miscommunication between air traffic control and the involved aircraft, and possibly the lack of sufficient separation between the two airborne vehicles.

Legal Implications of a Mid-Air Collision

When two aircraft collide mid-air, multiple legal considerations come into play. Here are the most important aspects to understand:

1. Liability and Fault

One of the first questions in any aviation accident is: Who is at fault? In this case, liability will depend on factors like:

• Air Traffic Control (ATC) Oversight: Air traffic controllers are responsible for ensuring that planes and helicopters maintain safe distances from each other. If ATC was negligent in providing clear instructions or failed to track the aircraft correctly, they may be found liable.
• Pilot Error: Whether it’s an airline pilot or military personnel, both are responsible for maintaining safe distances and following ATC instructions. If either pilot failed to exercise due caution or misinterpreted instructions, this could constitute negligence.
• Aircraft Maintenance: Both American Airlines and the military will likely be scrutinized for their maintenance procedures. If mechanical failures were involved, the respective parties might be held liable for not maintaining their aircraft to standard.

2. Negligence and Compensation

A negligence claim arises when someone fails to act with reasonable care, leading to harm or injury to another person. In the case of this mid-air collision, if negligence is proven by the investigation, victims or their families can file a claim to seek compensation for:

• Medical expenses
• Pain and suffering
• Lost wages (if the victim was employed at the time of the accident)
• Wrongful death (for families who have lost a loved one)

If a loved one was involved in this collision, it’s crucial to understand your right to pursue damages from those responsible, whether it’s the airline, the military, air traffic control, or even the aircraft manufacturer.

3. The Role of Aviation Law

Aviation law is a specialized area of law that deals with accidents involving aircraft. Key federal regulations, such as the Federal Aviation Administration (FAA) rules, dictate flight operations and maintenance standards for both civilian and military aviation. If the investigation finds that either party violated these regulations, that can serve as a foundation for proving liability in a personal injury or wrongful death claim.

Additionally, both the airline and military helicopters are subject to specific regulations and standards set by agencies such as the National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA). These regulations can help determine whether the collision occurred due to human error, equipment failure, or other factors.

4. Claims Against the Government

Since one of the aircraft involved was a military helicopter, any claims against the U.S. government would fall under the Federal Tort Claims Act (FTCA). This act allows individuals to sue the federal government for negligence in certain circumstances. However, claims against the government can be complicated, requiring specific procedures and time-frames to file.

5. Insurance Coverage

When it comes to an aviation accident, understanding how insurance works is vital. American Airlines and other potentially liable parties would have insurance policies covering different aspects of the accident, from pilot liability to property damage. However, claims involving government entities, such as the military, may be more difficult due to sovereign immunity and specific exclusions that limit recovery.

Conclusion

The American Airlines Flight 5342 mid-air collision with a military helicopter is a devastating incident that raises important legal questions about liability, negligence, and compensation. If you or someone you know was affected by this crash, it’s crucial to understand the legal implications and seek expert advice.

An experienced aviation attorney can guide you through the complexities of an aviation accident claim, helping you recover the compensation you deserve for your injuries or loss.

Can I Sue My Employer for a Work Injury in Arizona?

In Arizona, you can sue your employer for a work injury only if you have opted out of the workers’ compensation system before the injury occurred.

According to A.R.S. 23-906, employees must provide written notice to their employer if they choose to reject the workers’ compensation provisions and retain the right to sue. If you did not opt out before the injury, you are generally limited to receiving workers’ compensation benefits as your exclusive remedy. Aitken v. Indus. Comm’n, 173 Ariz. 300.

However, there is an exception if the injury was caused by the employer’s willful misconduct. Under A.R.S. 23-1022, if the injury results from an act done by the employer or a co-employee with the direct object of injuring another, and the act indicates a willful disregard for the life, limb, or bodily safety of employees, you may choose to either claim compensation or maintain an action at law for damages against the person or entity responsible for the willful misconduct. Gamez v. Brush Wellman, Inc., 201 Ariz. 266.

Additionally, if your employer fails to comply with the workers’ compensation insurance requirements, they lose the protections of the workers’ compensation system, and you may sue them under other applicable laws. In such cases, the employer cannot use defenses like assumption of risk or contributory negligence, and proof of injury serves as prima facie evidence of negligence on the part of the employer. A.R.S. 23-907.

What Damages Am I Entitled to Under Workers’ Compensation?

So, if you’re in a position where you can’t sue your employer for your work injury because your case doesn’t fall into the scenarios above, what damages are you entitled to?

Under Arizona’s workers’ compensation laws, you are entitled to several types of benefits if you are injured in the course of your employment. These benefits include medical treatment, compensation for lost wages, and compensation for permanent disabilities.

Firstly, you are entitled to medical, surgical, and hospital benefits, which include treatment, nursing, medicine, surgical supplies, crutches, and other apparatus reasonably required at the time of the injury and during the period of disability. Martinez v. Industrial Comm’n, 175 Ariz. 319. These benefits are provided to ensure that you receive the necessary medical care to recover from your injury.

Secondly, you are entitled to compensation for lost wages. This compensation is categorized into temporary and permanent disability benefits. Temporary disability benefits are provided during the period when you are unable to work due to your injury, and these benefits terminate once your condition becomes stationary. If your injury results in a permanent disability, you may be entitled to permanent disability benefits, which are based on the degree of permanent impairment. Jessie’s Boat Shop & R.V. Repair v. Industrial Comm’n, 155 Ariz. 380.

For injuries to specific body parts, compensation is determined according to a statutory schedule, which limits compensation to a certain percentage of your average monthly income for a set number of months. For injuries affecting body parts not listed on the schedule, you are entitled to disability compensation equal to 55 percent of the difference between your average monthly wages before the accident and your reduced monthly earning capacity resulting from the disability. Dye v. Industrial Comm’n, 153 Ariz. 292.

It is important to note that compensation under Arizona’s workers’ compensation system does not include damages for pain and suffering, as these are not compensable unless they result in a reduction of your ability to earn wages. Shaw v. Salt River Valley Water Users Ass’n, 69 Ariz. 309. The system is designed to provide prompt, though limited, compensation in exchange for giving up the right to sue the employer for larger damage awards.

What If a Third Party Causes My Work Injury?

An employee who is injured at work by a third party has the legal option to pursue a personal injury case against the third party responsible for the injury.

If the employee decides to pursue a civil action and successfully recovers damages from the third party, the workers’ compensation insurance carrier or the employer has a lien on the recovery to the extent of the workers’ compensation benefits paid. This lien is intended to prevent double recovery by the employee and to reimburse the carrier or employer for the compensation provided.

Additionally, if the employee settles the third-party claim for less than the total amount of workers’ compensation benefits, the employee must obtain written approval from the compensation fund or the person liable to pay the claim to recover the deficiency from the insurance carrier or other liable party. Failure to obtain such approval may result in the employee being unable to reopen the workers’ compensation claim to seek the deficiency.

Contact Our Experienced Arizona Personal Injury Lawyers to Handle Your Work Injury Case

If you have any questions regarding your Arizona work injury case, we’re here to help! Call us today for a FREE consultation. Our lawyers can help you present the best case possible to the adverse party. Call (855) 545-1777 to speak to our Arizona work injury attorneys directly.

Why is Proving a Permanent Injury Important in a Florida Auto Accident?

Proving a permanent injury is crucial in a Florida auto accident case because it directly impacts the ability to recover noneconomic damages such as pain, suffering, mental anguish, and inconvenience.

According to § 627.737, a plaintiff can only recover these types of damages if the injury meets specific criteria, including a:

1. significant and permanent loss of an important bodily function;
2. permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
3. significant and permanent scarring or disfigurement; or
4. death.

This is also known as the “Permanent Injury Threshold.”

The statute does not define “permanent injury,” but it requires that the permanency of the injury be established within a reasonable degree of medical probability. This means that expert medical testimony is necessary to prove the permanency of the injury. Rivero v. Mansfield, 584 So. 2d 1012.

However, subjective complaints of pain from the plaintiff can also be considered in determining permanency.

In the case of City of Tampa v. Long, the Florida Supreme Court addressed the issue of whether subjective complaints of pain could be included in the determination of a permanent injury. The court reaffirmed that permanent injury within a reasonable degree of medical probability may include permanent subjective complaints of pain, as long as they are supported by medical evidence.

Even the Florida Supreme Court has affirmed this rule. In Easkold v. Rhodes, 614 So. 2d 495 the Florida Supreme Court emphasized that a plaintiff is precluded from recovering noneconomic damages unless the injury satisfies one of the listed threshold requirements, specifically highlighting the necessity of proving a permanent injury within a reasonable degree of medical probability.

Which Injuries are Considered Permanent?

Now that we have an idea what the Florida Permanent Injury Threshold is and why proving it is important, let’s look at common auto accident injuries and analyze whether they would qualify for pain and suffering under this rule.

Whiplash

Whiplash is a soft tissue injury that occurs when the head is suddenly and forcefully jerked forward and backward, stretching or tearing the muscles and ligaments in the neck.

Symptoms include neck pain, stiffness, headaches, dizziness, and limited range of motion.

Whiplash can be considered a permanent injury under Florida law if it is established within a reasonable degree of medical probability.

In the case of Tampa Transit Lines, Inc. v. Smith, 155 So. 2d 557, the court acknowledged that whiplash injuries might not readily lend themselves to definite prognosis based on purely objective findings. However, the court accepted the treating physician’s opinion that the plaintiff’s pain was permanent, even though it was based largely on subjective symptoms attested by the plaintiff.

Similarly, in the case of Mighty Nat’l Exterminators v. Powers, 434 So. 2d 361, the court noted that the treating physician initially anticipated the whiplash injury would resolve in approximately three months but later concluded that the injury was permanent, resulting in a 20% permanent disability.

Concussions (Mild Traumatic Brain Injuries)

A concussion is a mild traumatic brain injury caused by a blow to the head or a sudden jolt, which can happen in a car crash even without a direct head injury.

Symptoms include headaches, nausea, dizziness, memory loss, confusion, and sensitivity to light or noise.

It’s no surprise to hear that moderate to severe Traumatic Brain Injuries (TBI’s) can be permanent, but mild TBI’s, like a concussions, can also qualify.

Concussions can be considered a permanent injury in Florida under certain circumstances.

According to the case of Johnson v. Phillips, 345 So. 2d 1116, the court held that permanent subjective complaints of pain resulting from an initial organic injury, such as a brain concussion, can be considered a permanent injury under § 627.737, even if the injury itself is not visible or objectively measurable. This interpretation was based on medical testimony that the patient’s complaints were permanent, despite the absence of permanent organic injury.

Broken Bones

The force from a car crash can cause fractures or breaks in the bones, particularly in the arms, legs, ribs, and collarbones.

Symptoms include swelling, bruising, pain, and difficulty moving the affected area.

Florida case law supports the notion that a broken bone can result in permanent injury.

For instance, in Scarfone v. Magaldi, 522 So. 2d 902, the court found that the plaintiff’s fractured forearm, which required surgery and resulted in permanent stainless steel screws in the bone, constituted a permanent injury.

Similarly, in Bradshaw v. State Farm Auto. Ins. Co., 714 So. 2d 620, the plaintiff’s permanent injury to his right foot, which included multiple surgeries and an altered gait, was recognized as a permanent injury.

Spinal Cord Injuries

Injuries to the spinal cord can result in partial or full paralysis, depending on the location and severity of the injury.

Symptoms include loss of sensation, movement, or reflexes below the site of injury, incontinence, and severe pain.

As probably no surprise, spinal cord injuries can be considered permanent injuries under Florida law. According to Florida statutes, a spinal cord injury involving severe paralysis of an arm, a leg, or the trunk is classified as a catastrophic injury, which is a form of permanent impairment. § 766.118, § 440.15.

Additionally, case law supports the notion that spinal cord injuries resulting in severe conditions such as quadriplegia are recognized as permanent injuries. United Parcel Servs. v. Carmadella, 432 So. 2d 702.

Herniated Discs

The impact of a car crash can cause the discs in the spine to shift or rupture, putting pressure on the spinal nerves.

Symptoms include back pain, numbness, tingling, and weakness in the arms or legs.

A herniated disc can be considered a permanent injury. Multiple cases have established that herniated discs are often recognized as permanent injuries by the courts.

For instance, in Katz v. Ghodsi, 682 So. 2d 586, the court noted that the experts agreed the plaintiff’s herniated disc constituted a permanent injury.

Similarly, in Smith v. Turner, 585 So. 2d 395, the jury found that the plaintiff sustained a permanent injury due to a herniated disc caused by an automobile accident.

Additionally, in Ramey v. Winn Dixie Montgomery, 710 So. 2d 191, the court acknowledged the testimony of treating physicians who confirmed that the plaintiff’s herniated disc was a permanent injury requiring ongoing treatment.

Furthermore, in Leinhart v. Jurkovich, 882 So. 2d 456, the treating physicians testified that the plaintiff’s herniated disc was a permanent condition that would necessitate future treatment and cause ongoing pain.

The case Mauldin v. State, Dep’t of Admin., Div. of Retirement also supports this, where medical experts concurred that the appellant’s herniated disc was a permanent condition with lasting limitations on his ability to work.

Joint Injuries

Joints such as knees, hips, shoulders, elbows, wrists, ankles, or other joints can be injured in car accidents due to the sudden and intense forces involved in a collision.

When a car crashes, the body is often jolted, twisted, or compressed in ways that can strain or damage the joints.

Joint injuries can be considered permanent injuries if they meet certain criteria mentioned above.

In the case of Holmes v. State Farm Mut. Auto. Ins. Co., 624 So. 2d 824, the court dealt with a temporomandibular joint (TMJ) injury. The expert testimony presented at trial indicated that the TMJ injury was permanent, and the court found that the trial court erred in denying a motion for a directed verdict on the permanency of the TMJ injury. This suggests that joint injuries, such as TMJ, can be considered permanent if supported by medical evidence.

Psychological Injuries

Car accidents can also lead to emotional and psychological trauma, such as post-traumatic stress disorder (PTSD), anxiety, or depression.

Symptoms can include flashbacks, nightmares, severe anxiety, and trouble sleeping.

Psychological injuries can qualify as a permanent injury under Florida law.

In the case of Miami-Dade County Sch. Bd. v. A.N., 905 So. 2d 203, the court considered the testimony of a psychologist who indicated that the child’s psychological condition, resulting from post-traumatic stress syndrome, might have to be revisited and could be reactivated in the future. The court found that the absence of the term “permanent problem” in the psychologist’s testimony did not preclude the finding of a permanent injury, as the evidence presented was sufficient for the jury to decide on the permanency of the psychological injury.

Scarring

Scarring can occur from burns, cuts, abrasions, or as a result of surgery after an auto accident injury.

Significant and permanent scarring or disfigurement is recognized as a separate category that can qualify for recovery of noneconomic damages under subsection (3) of § 627.737.

The determination of whether a scar constitutes significant and permanent disfigurement is typically a question of fact for the jury to decide.

Contact Our Experienced Florida Lawyers to Handle Your Auto Accident Case

If you have any questions regarding the Florida Permanent Injury Threshold, we’re here to help! Call us today for a FREE consultation regarding your Florida auto accident case. Our Florida car accident lawyers can help you present the best permanent injury case possible to the insurance company. Call (855) 545-1777 to speak to our Florida car accident injury attorneys directly.