Temporary or Permanent?

A great debate rages in courtrooms across the country, especially in motor vehicle accidents in Florida as to whether or not an injury is in fact permanent. The distinction can be significant in Florida motor vehicle accidents as it can make the difference in determining what a plaintiff is legally entitled to recover.

Buried deep within Florida’s insurance statute–not the tort or motor vehicle statute–lies the legal threshold for determining the appropriate damages a plaintiff can seek in a car accident.

§627.737 Tort exemption; limitation on right to damages; punitive damages.—

(1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by ss. 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).

(2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, 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.

(3) When a defendant, in a proceeding brought pursuant to ss. 627.730-627.7405, questions whether the plaintiff has met the requirements of subsection (2), then the defendant may file an appropriate motion with the court, and the court shall, on a one-time basis only, 30 days before the date set for the trial or the pretrial hearing, whichever is first, by examining the pleadings and the evidence before it, ascertain whether the plaintiff will be able to submit some evidence that the plaintiff will meet the requirements of subsection (2). If the court finds that the plaintiff will not be able to submit such evidence, then the court shall dismiss the plaintiff’s claim without prejudice.

This statute places an enormous burden on plaintiffs and their lawyers to prove that an injury is in fact permanent. This rarely applies to an obvious injury such as a fractured arm or leg, a significant wound requiring stitches that leaves an unsightly scar, or a significant brain or spinal injury.

Where the battle most likely will occur is in the arena of what is commonly considered to be a soft-tissue injury. This will especially occur when there is little or minor property damage to the plaintiff’s vehicle or the defendant’s vehicle.

The case then is won or lost on the testimony and credibility of the plaintiff and her treating doctors. That is because the defendant’s insurance company has a cadre of experience “independent medical consultants” who are comfortable in the courtroom and have years of practice persuading jurors that plaintiffs are simply malingering gold diggers seeking a big pay day.

It starts with the credibility of the plaintiff. I used to think that I was a good judge of how credible plaintiffs are. And of course, if I don’t believe or like them in our initial encounter, I will decline to represent or refer them to another lawyer. However, I don’t trust my instincts alone. I ask another member of my team to speak and meet with the client and share his or her feelings with me.

Secondly, I have found that actions speak louder than words. And knowing the legal threshold I have to cross to prove “permanency,” I evaluate the following:

Medical Care and Treatment

  1. When did the accident occur?
  2. Did the client go immediately to the ER–by ambulance or driven?
  3. Was the client admitted to the hospital or discharged?
  4. If admitted, for how long, and what was the discharge diagnosis?
  5. If the client was discharged from the ER, did any of the diagnostic tests–X-ray, CT, MRI–reveal a fracture or torn soft-tissue ligaments?
  6. If no medical care has been sought, why not, and how long has it been?
  7. In all but the most unusual circumstances, I won’t take a case when a plaintiff has chosen to see a lawyer (me) before seeking medical care.

Property Damage

Show me the property damage. I have been in many small impact cases where the damage looks like nothing more than chipped paint. Juries are clever and have a tough time believing that someone can have sustained a permanent injury with a scratch or ding to the vehicle’s bumper.

Prior and Subsequent Injuries and Claims

If a potential client has had more than a couple of accidents that resulted in claims, it could be a red flag. Of course, every case is different, but juries, insurance companies, and their lawyers are very skeptical of a plaintiff who appears to be a professional claimant.

Pre-Existing, Recurring, and Aggravated Conditions

It is very common for me to encounter a client who wants to minimize, deny, or hide a previous medical condition. I work hard to explain to the client the importance of being forthcoming with that kind of information to me, her doctors and the defense. First, credibility is the most valuable tool in winning a case. Accepting and embracing a prior injury or medical condition will only serve to highlight how credible and believable a plaintiff is. Second, all of the doctors who treat your client after an accident will rely on the plaintiff/patient’s medical history. If the history is inaccurate or incomplete, it can skew the physician’s opinions as to whether or not a previous injury is the cause of the pain, or whether or not there is an aggravation of a previous medical condition.

I have seen clients damage and destroy their otherwise perfect cases by failing to disclose previous medical conditions. Often, the client does not remember or does not know what her prior medical doctors may have written in her records. For instance, the plaintiff/patient may have thought she had been discharged from further treatment for a prior knee injury when in fact the physician wrote in the chart to return “PRN,” or as needed.

Therefore, if there have been prior injuries, I try whenever practicable to have my clients to return to their previous doctors rather than seek new providers who either don’t know or don’t care about their medical history.

Secondly, always acquire in advance of the defense the client’s previous medical records, police reports, and claims information–as you know the defense will, inevitably. It is worth noting that insurers and their lawyers commonly share claims information about plaintiffs. They have far more advanced investigating tools than most claimants and most lawyers comprehend.

Present and Future Medical Expense–What is Reasonable and Necessary?

I am not a doctor, but I sue doctors. When it comes to determining what is and what is not reasonable and necessary in the future, it is important to have an opinion you can trust. Therefore, unless you have a long-standing relationship with your client’s doctor(s) who will be called upon to render future prognosis opinions, I urge you to take the time and spend the money to meet with them to review their opinions and the plaintiff’s chart, and to cross-examine them as to the basis of their opinions. Some doctors will gladly meet with a plaintiff’s lawyer in the hopes of building a relationship that might lead to future referrals. Others are uptight prima donnas who charge exorbitant amounts or simply flat out refuse to meet with counsel. I have found that those doctors who refuse to meet with a plaintiff’s lawyer–regardless of how much they charge for the meeting, or request exorbitant fees for a 15-minute consult–will not be helpful down the road when the time comes for them to take an oath either in deposition or trial.

I have had many cases where a plaintiff’s treating doctor literally sabotages an otherwise perfect case with their reluctance or refusal to be of assistance to their patient’s lawyer and personal injury case.

Using Medical Records to Get an Accurate Assessment

Medical records often can and will make or break a plaintiff’s case. Take the time to educate your clients about the importance of communicating all of their complaints to their doctors on each visit. Also try to avoid the dreaded “better” response when asking about pain, range or motion, or other complaints. A doctor may simply dictate, “Patient reports that her pain symptoms are better” when in fact the patient simply made an “improvement” over the last visit.

This “all better” is a ticking time bomb that can come back and destroy a case. To avoid this, I recommend requesting the patient’s records and bills after each visit, so that errors such as “all better” can be corrected at the next visit, rather than months or years later.

Proving permanency requires a combined effort of the plaintiff, her lawyers, and doctors. Credibility is the key component as well as common sense. Some injuries simply are not permanent, and the sooner one can realize this, the sooner the lawyer can provide the clients with objective legal advice about the value of their case.

If you or a loved one has been subject to a personal injury in Florida and are seeking legal representation, please contact our office today for a free initial consultation.

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