LEGAL GUIDE
Written by attorney Kim Michael Cullen | Apr 23, 2010

The Critical Importance of a Permanent Injury In Florida Car Crash Cases

Most people do not realize that the most heavily-contested issue in most Florida automobile accident cases is not whose fault the accident was, or how much the accident victim lost in wages or incurred in medical bills. In Florida car crash cases, the most hotly disputed issue is undoubtedly the issue of permanency - or more plainly, did the claimant suffer a permanent injury within a reasonable degree of medical probability.

In 1973, the Florida Legislature made Personal Injury Protection (PIP) insurance coverage mandatory in Florida. PIP coverage provides motorists with medical and disability insurance coverage for any injuries caused by a car crash, whether significant or not, and regardless of fault. Providing drivers with this easy access to medical coverage following accidents was designed to reduce liability claims for minor injury accidents. The public policy reasoning was that if drivers could get their minor injuries treated and taken care of in short order, there would be no reason for slightly injured drivers to bring claims, or ultimately lawsuits, against negligent drivers.

This trade-off created by the Legislature to balance PIP coverage is now found in §627.737(2), Florida Statutes, which states that:

". . . (A) plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function. (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. (c) Significant and permanent scarring or disfigurement. (d) Death. Under this statute, if a plaintiff can prove that another driver is negligent and has caused the plaintiff's injuries, in every case the plaintiff will be able to recover any out of pocket medical bills he has incurred, any medical bills he is likely to incur in the future, any lost wages he has experienced since the accident, any loss of ability to earn money that he is likely to experience in the future, as well as any other out-of-pocket expenses the plaintiff has incurred. However, the plaintiff can recover NOTHING for his pain and suffering, mental anguish, loss of the ability to enjoy life and other general damages UNLESS he can prove that he has a permanent injury, permanent and significant scarring, or loss of an important bodily function. If he cannot prove a permanent injury, scarring, etc., he is limited to only special damages. The huge obstacle in these cases comes in determining whether an injury is "permanent." Since the ability to accurately see into the future is beyond the reach of most people, injury victims, insurance companies, and juries must depend upon doctors to issue opinions regarding the "permanency" of injuries. Doctors can't see into the future, either, so they are left relying upon their own experience, judgment, and some very loose medical guidelines. In many cases, the accident victim's treating doctor will opine that the she has suffered a permanent injury. In almost every one of these cases, the insurance company is able to hire a doctor who will examine the plaintiff and opine that she has not suffered a permanent injury. Both doctors are credentialed, and both doctors sound credible. How is a jury to decide which doctor is right and which doctor is wrong? It is easy to see why this issue is so hotly disputed. A Florida car accident victim needs a lawyer who is experienced in handling the issue of permanency in a lawsuit. It is important that a lawyer in a Florida automobile crash case have great familiarity with the medical issues present in most of these cases.

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