November 12, 2016

Suing for pain and suffering

Many who find themselves victim to car accidents get excited about what the at-fault driver may be obligated to pay them, or what their insurance company may be obligated to pay. One of the most popular ideas is suing for pain and suffering – it sounds convenient, and maybe even rightful, that one should be gifted a settlement for the hardships they’re forced to face due to the fault of someone else. But when it comes to suing for pain and suffering, it might not be as easy as it seems.


If you’re thinking of suing for pain and suffering, the factor you’re looking for is permanency. Permanency refers to any injuries you suffer caused by the car accident, or any other situation you’ve been involved in. Only those with a permanent injury can ask a jury for an award of pain and suffering damages, which can often be the largest portion of a jury award.

Juries can award injured people various types of monetary damages, and most of them can be dividing into two groups: economic damages and non-economic damages. Common economic damages would include things like medical bills and lost wages. Common non-economic damages include things like pain and suffering, loss of enjoyment of life, and mental anguish.

Of course every case is different, but many attorneys would likely agree that pain and suffering monetary damages often have the potential to be the largest portion of a jury award. However, as noted above, there is a requirement in Florida that a person must have sustained a permanent injury before a jury is allowed to give pain and suffering damages. Therefore, whether or not a jury finds that a person sustained a permanent injury can have a substantial effect on the outcome of the case.

Proving permanency

When suing for pain and suffering, the injured party will have a doctor testify in court as to whether or not they suffered a permanent injury.  Then, the insurance company will likely hire a doctor to testify that there is no permanent injury – if it’s decided the injured party did suffer a permanent injury, the insurance company is obligated to pay more money, so you can definitely expect the insurance company to fight back. Finally, the jury deliberates and decides whether or not the person sustained a permanent injury, and if so, how much money to award in pain and suffering damages.

Occasionally, however, courts attempt to make the decision on permanency themselves.  A recent example was in James v. City of Tampa.  In this case, a city sanitation truck backed into a car occupied by Mr. James, who was injured in the accident.  However, Mr. James had been injured in an accident just 4 months prior to the sanitation truck accident.  At trial, the City admitted that its driver was at fault, but argued that Mr. Smith was not injured due to the sanitation truck accident but the prior injury. The City also claimed that if Mr. James was injured due to the sanitation truck, it was only a minor injury. 

The treating physician for Mr. James and a Neurologist who examined Mr. James both testified that Mr. James suffered a permanent injury due to the sanitation truck accident. Before the jury could analyze the evidence, however, the trial court judge ruled against Mr. James, claiming he had already sustained the injury previously. When Mr. James appealed, the appellate court noted that, when deciding permanency, the decision is left to the jury, not the judge.

The court reasoned that the only circumstance in which the judge could make the decision was if the plaintiff did not present any evidence that he/she sustained a permanent injury. Here, two doctors testified that Mr. James suffered a permanent injury.  Even though Mr. James did have a prior accident with injuries, it was for the jury to decide if he sustained a permanent injury from the sanitation truck accident.  So, the appellate court reversed the trial court decision and remanded the case to the trial court for a new trial.