It is not uncommon for a client to come to our office and tell us about a significant rear end impact where their car may have even been demolished and they, miraculously did not experience horrible injuries. Unfortunately, there are many cases where people are horribly injured in automobile crashes. This article will focus on the people who do have injuries, however, their injuries are not catastrophic in nature.
If you are rear ended by someone else and there is no issue about who is at fault, you may believe that you are entitled to compensation due to the injuries that you have sustained, even if they are not catastrophic. Based on the current law, your assumption may be wrong. In all automobile crash cases there is a Florida statute which governs your ability to collect damages.
The statute is very specific and requires a threshold with respect to your injuries before you are entitled to recover regardless of who was at fault and how clearly negligent the other driver may have been. The statute states that you:
"May recover damages and 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.
The same statute further states that "if the court finds that you are not able to submit such evidence, then the court shall dismiss your claim without prejudice".
Of course, you would still be able to recover property damage. However, without incurring injuries which come under the umbrella of one of the four factors stated above, you will not be able to recover anything for your pain and suffering. There are many court cases interpreting permanency. One of the issues is whether or not the injured party's subjective complaints of pain is sufficient to prove that a permanent injury exists. Unfortunately, the legislature has made your chances of recovery difficult and costly. Expert testimony is generally required in addition to any subjective complaints that you may be able to testify to, so as to, support permanent injury. The law is very clear. The Supreme Court of Florida has stated that "subjective evidence of pain may properly be used to meet the requirements of permanency provided that expert medical testimony is presented to establish the existence and permanence of pain within a reasonable degree of medical probability".
As stated earlier, regardless of the fact that you were an innocent victim, sitting at a red light, and someone crashed into you from the rear because they were not paying attention and were otherwise completely negligent. When you present your case to recover compensation for your injured back and other soft tissue injuries that you may have, it is your obligation to prove by the greater weight of the evidence that you have suffered a permanent injury within a reasonable degree of medical probability. Your lawyer cannot rely strictly on your subjective testimony. Unfortunately, he or she is required to obtain expert testimony from your doctors supporting your claim in order for you to recover some level of compensation against the negligent party. The law does not limit the presentation of evidence to objective findings to establish the existence of permanency of a physical injury. As we know, soft tissue injuries may lack objective signs of other physical injuries and under these circumstances your subjective complaints may be the principal evidence available to prove its existence. However, there must be expert medical testimony to support your claim for personal injuries.
As a result of this threshold, there are many people who are injured who do not receive any compensation at all.
If you would like further information on this issue or any other issue related to protecting Florida's families, feel free to call Brett Panter at Panter, Panter & Sampedro, P.A. Brett Panter is a commercial pilot and is also a Board Certified Civil Trial Attorney. The offices of Panter, Panter & Sampedro, P.A., are located in Pinecrest at 6950 North Kendall Drive at the Panter Building, on the corner of Kendall and U.S. 1. Brett A. Panter can be reached for questions or comments at 305-662-6178; email at bpanterandpartner.com; or at the firm website www.panterandpanter.com.