Under Florida Law, a person injured through the fault of another, through another person’s negligence, is entitled to collect damages to compensate them for their losses, with the goal of making them whole. There are different categories of damages that an injured party may collect under Florida Law. Generally, these damages are divided into two areas: Economic damages and non-economic damages, also called “Pain and Suffering”. Economic damages are tangible losses that can be calculated with accuracy and definitiveness. Examples of economic damages are lost wages from work due to injuries or medical treatment associated with the injuries, medical bills incurred that are not covered by insurance policies, and damage or destruction of personal property such as the motor vehicle itself. These damages can ordinarily be calculated to the penny based on readily available information.
The other category of damages, known as pain and suffering, is less certain as there is no set formula to calculate such damages. Examples of pain and suffering damages are pain experienced from injuries from the date of loss projected into future years. Because many injuries have permanent, lifelong consequences, these damages may be calculated forward through the expected life expectancy of the injured party. In fact, under Florida Law, an injured party is not entitled to collect pain and suffering damages unless they first prove they sustained a permanent injury as defined under Florida Law. Florida Statute 627.737 defines a permanent injury as “(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; or (d) Death.
Included in what constitutes a permanent injury are psychological injuries. Examples of these injuries are depression, anxiety, post-traumatic stress disorder, and closed head or brain injury. This list is by no means exhaustive.
Going back to the requirement under Florida Law to prove permanent injury in order to collect non-economic, pain and suffering, damages, if an injured party is unable to prove he or she sustained a permanent injury as defined above, they are not eligible to collect pain and suffering damages. This can lead to a catastrophic result at trial if a jury makes that determination. Interestingly, this requirement only applies to automobile crashes and not to any other type of injury. For example, if a person is injured through the negligent creation of a dangerous condition in a building, that person can collect pain and suffering damages regardless of whether he or she proves they sustained a permanent injury.
Again, there is no formula to calculate pain and suffering. Attorneys for accident victims along with the insurance industry often make this determination based on past settlements of cases with similar injuries or jury verdicts resulting from trials with similar liability and injury facts. Some important factors in arguing the value of pain and suffering damages are the age of the injured person, the background of the injured person, the activity level of the injured person before and after the injury, the extent of the injury itself, and the effect the injury has on the injured party’s everyday life. The age is critical for various reasons. First, a younger person has many more years of life expectancy than an elderly injured person. More years translated into more pain and more suffering. Juries rely on census data and actuarial tables that offer average life expectancies for different ages, ethnic backgrounds, and genders. So in calculating pain and suffering for a 12 year old, an allowance for such damages over the course of 76 years may be appropriate, as a healthy 12 year old has an average life expectancy of 88 years old. Similarly, an elderly woman age 75 may have a life expectancy of only eleven years, so future pain and suffering damages may be calculated for a significantly shorter period. Other factors come into play when considering age such as the effect of pain, suffering or disfigurement to a child versus and adult. Likewise, there is an argument that an elderly person with a permanent injury will be forced to spend their remaining limited days, their “golden years”, in pain rather than enjoying their grandchildren . The background of the injured party is also considered, including family, education, employment history, and activity level to determine the true effect of the injury on the victim’s life.
A comparison of the injured person’s pre-injury versus post injury activity level is critical, the loss of mobility is a factor that can have significant impact when determining pain and suffering damages. For instance, I a recent trial in Central Florida, the injured party was a high level professional athlete who sustained a severed ear and lost sight in both eyes. The player, “Roberto”, lost the ability to earn money in the National Football League, and this was obviously an important element of his damages. However, his inability to pursue his true passion in life, his realized dream of playing professional football, had devastating psychological effects on both Roberto and his family. As a result, he suffered from depression and he practically gave up on life. The jury appreciated this element of “pain and suffering” and awarded $550,000 per year for his life expectancy of 60 more years, for total pain and suffering damages of 30 million dollars.
Roberto’s misfortune highlights one of the most overlooked elements of pain and suffering damages, the devastating psychological effects to the victim and his family. This by no means suggests a person suffering from depression or some other mental illness prior to the accident is not eligible to collect pain and suffering damages, as Florida Law specifically permits compensation for aggravation of a preexisting condition. This is critical in evaluating pain and suffering damages, as many people injured in traumatic events carry some degree of psychological issues from their lives, however they can find solace in knowing they can be made whole irrespective of prior issues.
