Can You Sue for Pain and Suffering in Florida?
In personal injury law, pain and suffering refers to the physical pain and mental and emotional suffering experienced by someone who has been injured. As a form of non-economic damages, pain and suffering compensates you for the adverse impact on your life, rather than a direct monetary loss.
Florida law does allow personal injury plaintiffs to pursue damages for pain and suffering and other non-economic losses. However, it is important to know how these damages are calculated and the limitations you may face in your claim.
An experienced personal injury lawyer in Florida at Colling Gilbert Wright can review your case and advise you of the compensation you may be able to recover. Contact us today for a FREE consultation.
Pain and Suffering in Auto Accident Claims
Florida is one of only a few states nationwide to implement a “no-fault” insurance scheme. In most auto accident claims, you cannot file a lawsuit against another driver (even if he or she is wholly responsible for the accident). Instead, you must turn to your own Personal Injury Protection (PIP) insurance policy for partial payment of your medical bills (80 percent) and loss of income (60 percent). In a no-fault claim, Florida PIP does not pay for pain and suffering and other non-economic damages.
However, you can pursue a claim outside of the no-fault system if you suffer what is defined by Florida law as a “serious injury.” Florida law defines serious injury as:
- “Significant and permanent loss of an important bodily function.”
- “Permanent injury within a reasonable degree of medical probability.”
- “Significant and permanent scarring or disfigurement.”
If your injuries qualify as serious, you can pursue a claim against the at-fault driver. You may be entitled to full compensation for your injuries in the accident, including pain and suffering damages.
Pain and suffering damages are also recoverable in wrongful death claims involving auto accidents (death is included in the definition of serious injury under Florida law). Surviving spouses, minor children, and parents of a deceased minor child may be entitled to pain and suffering damages in claims arising from fatal motor vehicle accidents.
Pain and Suffering in Medical Malpractice Claims
For many years, non-economic damages (including pain and suffering) in medical malpractice claims were subject to one of several caps. Non-economic damages in claims against practitioners were limited to $500,000 (or $1 million if the harm resulted in a persistent vegetative state or wrongful death) while a cap of $750,000 applied to claims against non-practitioners (or $1.5 million in the event of a persistent vegetative state or death).
However, the Florida Supreme Court overturned these damage caps in 2017. The majority opinion found that “the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries.”
So, if you were injured or lost a loved one due to medical negligence, you may be able to recover full non-economic damages (including pain and suffering) in a malpractice claim.
How Is Pain and Suffering Calculated?
As with all types of losses in a personal injury claim, your pain and suffering damages must be supported by the evidence. However, calculating pain and suffering is often more complicated than accounting for medical expenses, lost wages, and other economic damages.
If the insurance company offers to settle your claim, the adjuster may calculate pain and suffering by:
- Applying a multiplier to your economic losses; the multiplier is determined by the severity of your injury and how it may affect you long-term.
- Determining a “daily rate” for your injury and applying it to how long the injury is expected to affect you; this is known as a “per diem” (Latin: “per day”) calculation.
However, the adjuster may not account for pain and suffering in calculating the value of your settlement. Furthermore, the insurance company may not offer to settle your claim at all.
For both of these reasons, it is important to work closely with a personal injury lawyer to build your claim for compensation. Although pain and suffering may not be quantifiable on a bill or receipt, your attorney will fully investigate your injuries to determine:
- The seriousness of your injury or injuries
- The pain you experience day to day as a result of your injury
- Permanent impairments resulting from the injury
- The psychological effects of the injury or impairment
- How the injury affects your relationships with family members
Testimony from your doctors and other medical experts can also support your claim for pain and suffering and other non-economic damages. Should your case go to trial, you, members of your family, and/or close friends may need to take the stand to testify as to how the injury affects you physically, mentally, and emotionally.
Pain and suffering damages compensate you for the adverse effects of an injury caused by someone else’s negligence. Although compensation in a personal injury claim will not restore you to the condition and quality of life you enjoyed before the accident, recovering damages can help relieve the burdens you face and assist you in navigating the challenges of a permanent injury or impairment.
For a FREE consultation with a personal injury lawyer in Florida, please call (407) 712-7300 today. The attorneys at Colling Gilbert Wright serve clients in Orlando and other areas throughout the state of Florida.