I’ve said that surgery increases a claim’s full settlement value.
This is true regardless of whether the injured person has a cervical fusion, or a lumbar fusion. Cervical means neck. Lumbar refers to the back.
Thus, spinal fusion settlements can be big. They can also be tough cases. In a moment, you’ll see what I mean.
Over the past 20 years, I’ve been asked many questions about spinal fusion claims and settlements.
Here are some frequently asked questions (FAQs):
What is the biggest difficulty in a spinal fusion surgery case?
Spinal fusion cases can have their challenges.
By far, the worst part of many spinal fusion cases is that there is often limited insurance available. As a result, the injured person often times does not get fully compensated for his or her case.
Why?
First off, the full value for pain and suffering for a spinal fusion surgery is large. I know that the value is big because I’ve done the jury verdict research. I also know from my own cases.
In slip and fall cases, you often have to overcome another hurdle. You must prove that the property owner knew or should have known about the hazard before you fell. This makes many slip and fall cases tough.
But don’t lose all hope. Slip and fall cases can be winnable.
Also, you should gather your past medical records. The insurance company will want to take a look at your past medical records. They are looking to see if you injured your back or neck before the accident.
In cases where the insurance limits are smaller, the insurance company will be less focused on your past medical records.
How much money can you get from a spinal fusion surgery lawsuit or settlement?
I can speak for personal injury cases in Florida. Past Florida jury verdicts generally put the full value pain and suffering value of a single level fusion surgery at $400,000 to $600,000.
Now:
The $600,000 top of the pain and suffering range is not a cap. The full value of pain and suffering could be higher. For example, some insurance companies have paid the $1 million policy limits for a fusion. A better paying company like Nationwide is more likely to do this. This does not mean that Nationwide will offer the $1 million limits in a single level fusion accident case. I am just saying that better insurance companies typically offer more for pain and suffering.
Don’t expect GEICO, State Farm, Allstate or Progressive to be as generous. I have never heard of any of them offering $1 million to settle a fusion surgery. That does not mean that it has not happened. I just have not heard of it.
And unfortunately with Uber accident settlements being confidential, we do not know how much Progressive is offering. (In Florida, Progressive is Uber’s insurance company.)
For example, let’s assume the following:
Someone else’s negligence caused Mike to have a one level lumbar fusion. Lumbar is a fancy word for back. Or perhaps he has a cervical (neck) fusion surgery.
The fusion surgery is a success. Mike treats in total for 10 months. Past Florida jury verdicts for this scenario put the value of a pain and suffering for Mike’s accident between $400,000 to $600,000.
However, $600,000 would generally be upper limit on the pain and suffering component in Mike’s personal injury case. (Of course, there are exceptions. I am generalizing here.)
The following factors would increase the pain and suffering settlement value of a spinal fusion surgery:
More than one level is fused. The surgery was not successful. The injured person treated much more than 10 months or so.
On the other hand, if the level that was fused had prior issues, the pain and suffering value would likely be reduced accordingly. The same is true if the case has causation issues.
An example of a causation issue would be if the vehicles involved in the accident had little or no damage to them.
If you have a spinal fusion, is your injury considered permanent?
All things equal, a jury is more likely to consider your injury permanent if you’ve had surgery. The more major the surgery, the more likely that a jury will consider it to be permanent. And if a jury would consider it permanent, then there is a good chance that the responsible insurance company would also. This triggers a better settlement offer.
Take, for example, someone who is in a car accident and has a fractured vertebrae. If he or she has surgery to the fix the vertebrae, doctors are more likely to say that the injury is permanent.
When it comes to spinal fusion surgery, the more levels that are fused, the higher the likelihood that a jury believes that the injury is permanent.
Let’s assume that the injured person has a three or four level spinal fusion surgery as a result of a burst fracture (or other fracture). A burst fracture can happen from a bad car accident or a fall from a height.
Having a four (or more) level fusion is a lot of restriction. It negatively affects your ability to function.
In this case, a jury is more likely to believe that is a permanent injury as compared to a one level fusion.
For settlement purposes, in most personal injury claims the full value of pain and suffering of a two level back or neck fusion surgery is likely between $450,000 to $650,000.
I’m referring to Florida personal injury claims.
Remember:
The full value is before any discounts are taken for liability, fault of the injured person, or difficulty linking the fusion surgery to the accident.
A four level fusion surgery likely has a higher pain and suffering value. A four level fusion surgery is a major surgery.
Is your case worth more if you have more than 1 level fused?
The full value of the case is higher because more of your neck has been affected. For example, all things equal, someone who has a 2 level fusion on C3-C4 and C4-C5 has a higher case full value than someone who only has a C3-C4 fusion.
What is the value of pain and suffering associated with a neck fusion in a Florida injury case?
1 level neck fusion: $400,000 to $600,000 2 level neck fusion: $450,000 to $650,000 4 level neck fusion: $500,000 to $700,000
If there are serious complications from the surgery, the pain and suffering value can be higher. In addition, the injured person is entitled to their out of pocket medical bills. He or she is also entitled to compensation for lost wages.
Will a car insurance company pay $1 Million for a fusion surgery from a car accident?
Possibly. Moreover, they may even do so before your personal injury attorney has to sue. However, you will likely need to for a few things to happen for the car insurance company to voluntarily pay the $1 million BIL limit without a lawsuit.
First, you will likely need moderate to significant damage to the car(s) involved in the accident. Second, it will help your chances if the total medical billed charges are high.
Also, your chances of getting the $1 million limits are higher if the BIL insurer is an:
But don’t get too excited. As you’ll see below, Nationwide has taken fusion cases to trial. So get an attorney immediately.
In one claim, an out of state car insurance company paid $1 million to settle a Florida car accident claim where the injured person had a back fusion surgery. That wasn’t my case.
Additionally, I’ve heard of Nationwide Insurance Company paying close to the $1 million BIL limits in a back fusion surgery claim.
Nationwide Companies operate under the following names:
Colonial County Mutual Insurance Company Freedom Specialty Insurance Company National Casualty Company Scottsdale Indemnity Company Scottsdale Surplus Lines Insurance Company Western Heritage Insurance Company Scottsdale Insurance Company
You can breathe a sigh of relief if your need for a fusion surgery was caused by someone insured with one of the above Nationwide Insurance companies.
$150K Settlement for Lumbar (Back) Fusion from Car Accident
My client was in a car accident in Miami, Florida. He had very bad back pain. After the crash, he looked for a Miami car accident lawyer. I gave him a free consultation at my office. During our meeting, he hired me.
Progressive insured the at fault driver. My client had uninsured motorist insurance with Allstate.
We settled for the combined $150,000 insurance limits.
Limited insurance mostly occurs in car accident cases. If you’re injured at a business establishment, insurance usually isn’t an issue. Most businesses have at least $1 million in liability insurance.
$1.3 Million Verdict for 3 Level Cervical Spinal Fusion (Slip and Fall)
She sued for underinsured motorist benefits following her collision with an underinsured driver. The driver who caused the crash didn’t have enough insurance to pay for Harmon’s injuries.
If Harmon didn’t have this cervical surgery, the jury would’ve likely awarded her much less money for both past and future pain and suffering.
State Farm appealed the case. The appeals court agreed with all parts of the verdict, except for the jury’s award of $100,000 for future medical expenses.
Ms. Harmon presented the testimony of her treating physician, Dr. Frank R. Collier, M.D. to lay a foundation for an award of future medical expenses. Dr. Collier testified that Ms. Harmon would need certain care in the future, such as routine follow-up visits with her doctors on a schedule approximating the one she followed post-accident.
Dr. Collier agreed with Ms. Harmon’s counsel that his prior billing could reflect the cost of those probable future visits.
Doctor Said She May or Might Need Injections, Didn’t Say It Was Reasonably Certain to Be Incurred
Additionally, Dr. Collier testified that Ms. Harmon may need different modalities of treatment in the future that might include trigger point injections, which might possibly be of benefit along with other treatments that might be indicated in the future.
Again, Dr. Collier agreed with Ms. Harmon’s counsel that a review of his past medical bills, totaling $35,947, could define the costs of those possible treatments that may occur in the future.
The injured person should ask the doctor to state, in writing, if he or she is reasonably certain to need the future medical treatment.
The appeals court said that the jury’s award for future care is not OK because, other than routine follow up visits, Dr. Collier offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of that potential additional future medical care.
Here is a tip to try to increase the case value:
Ask the doctor to write a report, which states a specific or general dollar amount and allows a jury to calculate the cost of the additional future medical care. The doctor should state the frequency or specific type of treatments that you’ll need.
The appeals court said that there was evidence that Ms. Harmon would probably need future care, specifically routine follow-up office visits. However, there wasn’t enough evidence to support an award of $100,000 for future medical expenses.
$1.25 Million Verdict for 1 Level Lumbar Fusion (and Other Injuries)
But Nationwide is still an insurance company. As you’ll see here, they still fight certain car accident claims.
Nationwide initially defended the lawsuit using an in house attorney, Mark Hektner. He is a West Palm Beach lawyer. Essentially, he was an employee of Nationwide.
Pain management and physical rehabilitation expert Dr. Mark Rubenstein
Dr. Rubenstein testified within a reasonable degree of medical certainty that Vincent will require future care between $300,000 and $400,000.
Further, Dr. Rubenstein specifically did not include in his number any future treatment he deemed possible. He only included future treatment he was reasonably certain would be necessary.
I’ve said it before. All things equal, a passenger’s personal injury case is better than a driver’s case. And the jury here proved that this was the case.
According to her attorney, all her doctors testified that her injuries were related to the accident. All the doctors said that her injuries were permanent. They also agreed that she will need future medical care.
In addition, each doctor spoke about the pain involved in dealing with the injuries suffered by her.
At trial, the jury awarded her $725,829.80 for past medical bills. They awarded her $100,000 for past pain and suffering. They gave her $400,000 for future pain and suffering.
Passenger Usually Isn’t At Fault (Which Helps Settlement)
The jury placed 55% of the negligence on Stewart. They found Reagle 45% at fault.
Why does this percentage matter?
Since Kevin Stewart was 55% at fault, Nationwide only has to pay 55% of the Vincent’s damages. Of course, this amount is only up to the policy limits.
However, to get this money, Nationwide would need to have an insurance policy that is greater than $690,706.
Unfortunately, I don’t know how much Nationwide’s policy was in this case.
However, most car insurance policies aren’t that big. In fact, I settled a personal injury case with Nationwide where its insured’s bodily injury liability (BIL) insurance limits were just $10,000.
I also represented a family against Nationwide’s insured. The family was on vacation in Florida (from California). A car crashed into them. Nationwide had a $100,000 BIL limit in that case.
On the other hand, Nationwide also sells $1 million BIL policies. Better yet, Nationwide sells personal umbrella insurance coverage.
If Reagle, the motorcycle driver, didn’t have insurance, this could be bad news for Vincent. She might be able to get money from him.
Would this case have been different if Stewart was an Uber or Lyft driver?
If Stewart was an Uber or Lyft driver, and engaged in a ride, then there would be a $1 million insurance policy. The most that the injured motorcycle riders and passenger could get combined would be $1 million. I’m referring to getting money from Uber (Progressive) or Lyft (Travelers Insurance Company).
Here, Uber and Lyft’s insurance company would have had a high enough liability insurance limit to pay Vincent what the jury awarded ($690K).
Ok. Back to the case.
After the verdict, Vincent and her attorney asked the trial court to increase the future medical bill award. From looking at the court file, I don’t see that the judge increased the award.
Did Nationwide automatically pay Vincent?
No. Nationwide appealed the verdict.
The appeals court said that in this particular situation — the motorcycle license violation was relevant to the case at hand. The evidence should have been presented to the jury for a determination of whether the violation proximately caused any of Reagle’s injuries.
Thus, it ordered a new trial. At the new trial, the jury will get to hear that the Reagle’s temporary motorcycle license didn’t allow him to carry passengers.
On October 27, 2017, this appellate order was entered in the trial court file. There are no other filings since then. Thus, I assume that Vincent reached a settlement.
She likely settled with Nationwide for less than the amount that Stewart was found liable for. This is because, among other things, the new jury would’ve heard that the Reagle had a passenger but didn’t have the proper license.
In other words, more fault would likely be placed on Reagle. Thus, the jury would put less fault on Nationwide’s insured.
Who is the best attorney for a personal injury that requires fusion surgery?
In Florida, attorneys are not allowed to say that they are the best. However, here is a tip.
First, find an attorney who has experience with fusion surgery cases. Second, make sure that the lawyer also has experience with your particular type of accident or incident. For example, let’s say that you were injured in an Uber rideshare accident. As a result, you need a back fusion surgery. In this instance, I recommend that you hire an Uber accident lawyer.
Why?
Because they will already know how Uber’s insurance limits as well as rideshare laws. Likewise, if you were in a Lyft accident, hire a Lyft accident attorney.
Third, only hire an attorney who is licensed to handle personal injury cases in the state where you were injured. As an example, let’s say that you were hurt in Florida. In this situation, you should only hire an attorney who is licensed in Florida. You can check the Florida Bar website to verify that an attorney is licensed in Florida. In case you are wondering, I am licensed in Florida.
I love representing people who need or have had a fusion surgery. That said, I only handle cases where someone else was careless. It could be a careless person or a business.
Jury Says Negligence Wasn’t the Cause of Shopper’s Cervical Fusion
Target store at 5900 Lake Worth Road, in Greenacres, Florida
This isn’t my case. Benita Siciliano claimed that she slipped on a placemat lying face-down on the floor of a Target store and fell.
She said that it happened at the Target store at 5900 Lake Worth Road, in Greenacres, Florida.
Her attorney made a settlement demand to Bart Olson of Sedgwick Claims Management for Target. The demand was for $950,000.00.
Her settlement demand letter detailed the extent of her injuries, the physicians who treated her, and the medical care she received.
The demand letter documented treatment with twelve (12) different medical providers with total medicals expenses of $204,401.99.
Her settlement demand documents cervical disc herniations at C5/C6 and C6/C7. An MRI showed a lumbar disc herniation at L4/L5 with disc bulge at L5/S1.
In other words, she claimed two herniated discs in her neck and a herniated disc in her back.
Her settlement demand said that she underwent anterior spinal fusion surgery at the C5/6 level with anterior instrumentation, partial corpectomy and insertion of interbody cage at C5/6.
Benita Siciliano, sued Target on November 18, 2014. Target removed the case to Federal Court in West Palm Beach, Florida.
What compensation did she sue for?
In addition to total medicals expenses of $204,401.99, she sued for compensation for
(a) the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
The guest and her son were shopping for school supplies in the seasonal “back-to-school” section of the Lake Worth Target store when she slipped on a placemat lying face-down on the floor and fell.
She couldn’t show that Target had actual knowledge of the placement on the floor prior to her fall. She also couldn’t show that the placemat on which she slipped remained on the floor, before her fall, for such a length of time that Target should have known it was there.
Items Were Regularly on the Floor in Seasonal Area of Target
However, there was enough evidence—particularly in the testimony of Target store employees—to raise a genuine dispute as to the regularity with which items such as the placemat on which Siciliano slipped are left on the floor of the seasonal area of the store, where Siciliano fell, during the back-to-school season.
The testimony of Target store employees established that, prior to Siciliano’s fall, they had never seen or heard of a placemat on the floor. Target claimed that no one else who had slipped and fallen on a placemat or other object left on the floor of the store’s seasonal section.
Yet, their testimony also established that during the back-to-school season, the store’s seasonal section is often messy. The employees’ testimony also established that customers tend to throw items on the floor and leave them there, and this was not the first time Target store employees had seen items on the floor in the back-to-school section.
This evidence raised a genuine dispute as to whether items were regularly left on the floor of the store’s seasonal back-to-school section, which is important to the extent that Siciliano may offer evidence of the regularity with which this condition occurred to prove that Target had constructive knowledge of the placemat on the floor in this particular case.
Items Regularly on Floor Gets to a Jury
The Court said that section 768.0755 does not require that placemats such as the one on which Siciliano slipped in this case are regularly left on the floor of the store’s seasonal back-to-school section in order to prove that Target had constructive knowledge of that condition in this case.
So long as items were regularly on the floor before the fall, that was good enough to show constructive notice.
This is a good case for people who are injured at stores. Similar facts may allow your case to get to trial.
However, Siciliano’s luck ran out…
Jury Says Target’s Negligence Didn’t Cause Shopper’s Injuries
The jury found that Target’s negligence wasn’t the cause of the shopper’s injuries. She lost the case. However, on June 8, 2015 Target filed a notice of settlement.
The parties likely settled to avoid an appeal.
Target used the West Palm Beach law firm of Derrevere, Hawkes, et. al. Target pays this firm by the hour to defend it in slip and fall cases.
The case is Benita Siciliano vs. Target Corporation. Date of Verdict: May 29, 2015.
Case No.: 9:14-CV-80459. The judges were Rosenberg/Brannon.
$370K Verdict For Cervical Fusion (Object Fell on Shopper)
Actor
This is not my case. A jury awarded $370,000 for the pain and suffering component of a lawsuit where a 57-year-old woman sued Home Depot.
The woman claimed that Home Depot should have had the metal rack secured.
Home Depot admitted that it was at fault for the accident but argued that the woman’s injuries were not caused by the accident. About one year after the accident, the woman had an MRI that showed impingement syndrome and degenerative disease of the acromioclavicular (shoulder) joint.
Her doctor did shoulder surgery (arthroscopic subacromial decompression surgery with acromioplasty) and open distal clavicle (collarbone) excision. The woman then had physical therapy and some injections into her shoulder.
About 5 years after the accident at Home Depot, she had an MRI that showed spondylosis at C4, C5, and C6 levels. Spondylosis describes spinal degeneration accompanied by pain, and is often used as a synonym for spinal arthritis.
The doctor also said that she had a herniated disc in her neck. The woman had a three-level (neck) cervical fusion.
The woman claimed that she had scars from this accident.
I Don’t Know the Breakdown Between Neck and Shoulder Pain and Suffering Compensation
Unfortunately, I do not know how much the jury awarded for the pain and suffering was for each injury. I am referring to the shoulder and the neck. Again, she had a 3 level neck fusion.
This is of course assumes that the shoulder surgery is related to the accident. In this case, I assume that Home Depot argued that the shoulder surgery was not related to the accident. In any case, there are many things that can affect how much your injury case is worth.
The woman had a MRI 5 years after the accident, which is a long time to wait to have an MRI. Generally speaking, the sooner that you have an MRI after an accident and it shows a problem, the better it is for your case. The longer you wait to have an MRI, the worse it is for your case.
If you have an MRI shortly after the accident, it is more difficult for Home Depot (or any defendant) to argue that the injuries shown on your MRI are not related to the accident.
If you wait too long to have an MRI, Home Depot may argue that if the pain were bad then you would have had an MRI sooner. Home Depot may also argue that you may have had another accident (since the original accident) that caused the positive (problems) findings on the MRI.
I think that the surgery to the woman’s clavicle was more invasive (serious) than the surgery on her shoulder because it was open surgery instead of arthroscopic surgery. Open surgery is when the doctor gets a knife and cuts you open. Arthroscopic surgery is when surgery is performed through tiny holes instead of a big cut.
The 2 biggest scars on the woman would be on her neck and on her clavicle (collarbone). This case went to trial 6 years after the accident at Home Depot.
She Sued 3 Years After the Accident
It took so long because the attorney filed a lawsuit 3 years after the accident.
The woman was awarded $25,000 per year for the 6 years of pain and suffering before the trial/verdict. The woman was expected to live another 20 years after the verdict, so she basically was awarded $11,000 per year in future pain and suffering.
I could not find any appeals decision on this case which leads me to believe that the jury verdict was not appealed. This is not my case, though I have settled many store injury claims.
Two of Home Depots biggest competitors in Florida are Best Buy and hh gregg. HH gregg uses a third party administrator (TPA) to handle its injury claims. Its TPA is Gallagher Bassett.
$326K Verdict for Cervical Discectomy and Fusion (GEICO Uninsured Motorist Insurance)
This is not my case. Valerena Candy was in a three car motor vehicle accident on July 18, 2009.
At the time of the accident, Candy was riding as a passenger in the front seat of a vehicle being driven by Annalise Mannix.
Annalise Mannix’s vehicle came to a stop in a line of traffic, when it was rear ended by a second vehicle that was propelled forward by a third vehicle, which was being driven by Danais Hernandez.
The second vehicle caused minimal damage to Mannix’s vehicle.
Thereafter, she was treated conservatively for chest, neck and low back pain.
Candy had lumbar and cervical MRIs, which revealed multi-level disc herniations.
GEICO’s adjuster stated that:
Although there was approximation, reports were negative for spinal cord compression and nerve root impingement.
Spinal cord compression and nerve root impingement increase the value of a case.
She had two cervical epidural steroid injections.
Around June 22, 2010, Candy Valerena sued GEICO in Key West, Monroe County, Florida.
On October 28, 2010, GEICO offered $20,233.54 to settle Candy’s uninsured motorist insurance claim.
She Had Neck Diskectomy and Fusion Surgery
On March 2012, she had neck surgery to repair injuries allegedly caused by the accident. Specifically, she underwent a diskectomy and fusion at the C5-C6 and C6-C7 with interior plating inner body grafts by Dr. Kalman Blumberg, a spinal surgeon.
GEICO’s attorney hired an orthopedic surgeon, Dr. Rafael Fernandez, to give his opinion on Candy’s injuries. Dr. Fernandez’ opinion was that Candy’s injuries were pre-existing and not caused by the accident.
GEICO hired a biomechanical engineer who said that the delta force of the Honda was only 4.3 miles per hour in the crash. Therefore, he said that Candy could not have been injured in the crash with such a low impact.
GEICO used its in house Miami lawyers to defend the case. However, 5 days before trial, they brought in outside counsel (attorneys) to defend GEICO at trial. This costs GEICO more money because they likely had to pay the outside counsel by the hour.
57% of the Total Verdict Was for Pain and Suffering
On April 11, 2013, at trial a jury awarded her $326,468. Candy was 51 years old at the time of trial.
The jury awarded her $141,408 in past medical expenses. However, in Florida the injured person cannot recover the billed charges if insurance paid at a lower rate.
Candy received $10,000 in Personal Injury Protection (PIP) benefits. Basically, this means that her PIP coverage on her car insurance policy paid her medical providers $10,000 for medical bills.
This is because Florida one of a few No Fault states. Here is a map of No Fault states:
She also received $10,000 in Medpay Benefits. Thus, GEICO was entitled to a $20,000 credit for PIP and Medpay.
Also, she had health insurance that paid a good amount of her medical bills. Since her health insurance company had a contract with some of her medical providers, GEICO was entitled to a credit for the discounts. Thus, GEICO got a credit of $55,299.81 for her health insurance discounts.
Basically, GEICO only owed Candy $66,108 for her past medical bills after GEICO got credit for her PIP, Medpay and health insurance discounts.
Apparently, Candy also settled with Progressive for $7,000. I don’t know who Progressive insured in this case.
After all of the credits (setoffs), the $326,468 verdict was reduced to $244,108.19. Thus, the case value was 1.7 times the total medical billed charges.
Case Was Worth 3.8 Times the Medical Bills that GEICO Owed
The case value was 3.8 times the amount of medical bills that GEICO owed.
Candy did not ask the jury to award her future medical expenses.
$77,700 was for past pain and suffering. $107,300 was for future pain and suffering.
Again, the total judgment was for $244,108.19.
Candy only had $50,000 in uninsured motorist insurance with GEICO. However, her verdict against GEICO was for way above the $50,000 limits.
Next, she sued GEICO in federal court for failing to pay the $50,000 UM limits when it could and should have.
The bad news?
The jury for the bad faith case found that GEICO did not act in bad faith. Thus, Candy’s payout was capped at $50,000. In addition, she recovered her court costs of $12,042.47.
$2.19 Million Awarded for Future Lumbar Fusion (and Other Injury)
This isn’t my case. Judy Harlow sued Bright House Networks, LLC after a car accident. She sued in Hillsborough County, Florida.
At trial, Mrs. Harlow’s treating physician and surgeon, Dr. Gary Moskovitz, testified regarding Mrs. Harlow’s accident related injuries.
At the time Dr. Moskovitz initially saw Mrs. Harlow, he testified:
she continued to have persistence of low-back pain with radiation into the left-lower extremity associated with intermittent numbness in the lower extremity. Her pain was made worse by sitting. Overall level of pain varied from 4 to 9 out of 10 depending on flare-ups.
Dr. Moskovitz’s initial diagnosis was a L5-S1 disc herniation. Regarding his review of Mrs. Harlow’s lumbar MRI, Dr. Moskovitz testified:
[m]y interpretation of her MRI scan is that she had a L5-S1 disc herniation with high intensity zone, indenting the dural sac.
Dr. Moskovitz testified he later performed a:
L5 laminotomy and S1 laminotomy with L5-S1 discectomy. And I also did a epidural steroid injection.
Here is an illustration of a discectomy:
Dr. Moskovitz assigned Mrs. Harlow a permanent physical impairment of 18 percent. All things equal, a high permanent physical impairment rating increases the case value.
She had Problems After the Surgery Because Her Disc Was Torn
Nucleus herniating through tear in annulus with MRI) (not from case)
Dr. Moskovitz testified Mrs. Harlow was experiencing problems after the surgery, stating:
Well, she’s still having problems because she — because she had a disc herniation, she had a damaged disc and her disc was torn. We removed a piece of the herniation that was protruding into the spinal canal. The disc is still torn. Just like if you have a car tire and there is a tear and the inner tube sticks out and you go ahead and remove it, the inner tube will still have a tear within the wall of the car tire. So you lose certain volume from inside the disc. So that disc is much more predisposed to collapse. She had also scar tissue due to surgery itself.
Regarding Mrs. Harlow’s need for future surgery, the following exchange took place when her attorney asked Dr. Moskovitz’s questions:
Q. Will her symptoms increase over a period of time?
A. Over a period of years she’s probably going to get worse over time.
Q. And why is that?
A. Because she has a damaged disc, and that disc is going to be more predisposed to accelerated degenerative changes and collapse.
Q . Will she require surgery in the future?
A. She probably will.
Q. What type of surgery will she require?
A. L5-S1 fusion.
L5-S1 Fusion Surgery Costs Between $120K to $160K
When asked “[a]nd it’s your medical determination that she will need this future surgery, caused from the collision, within a reasonable degree of medical certainty?” Dr. Moskovitz replied, “[y]es, within the remainder of her lifetime.”
Regarding the total cost of the future L5-S1 surgery, Dr. Moskovitz said it’s
approximately between $120,000 and $160,000
He went on to say:
it includes the use of the operating room at the hospital. And, obviously, the longer it takes, the more they charge for it. It includes the cost of the implants, it includes postoperative nursing care and the hospital care. Then there’s also the bill from the anesthesiologist, and also my bill, the surgeon’s bill.
Her Emotional Pain from the Accident Likely Caused the Big Verdict
Together, Mrs. Harlow’s lawyer argued that Dr. Moskovitz and Mrs. Harlow presented enough reliable testimony supporting her claim for pain and suffering, disability, physical impairment, mental anguish, inconvenience, aggravation of a disease or physical defect and loss of capacity for the enjoyment of life sustained in the past and to be incurred the future.
The total verdict was for $2,199,000. The jury awarded $89,652 for past medical expenses. They also awarded $263,816 for future medical expenses. The jury gave $61,862 for lost wages.
Jury Awarded $237K Per Year for Past Pain and Suffering ($59K Per Year for Future Pain and Suffering)
Basically, the jury awarded $237,822 per year for pain and suffering from the date of the accident through trial. The jury awarded $59,455 per year for her future life expectancy of 18 years.
The defense asked the court to reduce the amounts awarded for pain and suffering. They said that since the accident, the claimant traveled to Israel, and still worked. Thus, they argued that the jury awarded too much for pain and suffering.
National Union Fire Insurance Company, PA was the primary liability insurer of the defendant, Bright House Network. National Union operates as a subsidiary of AIG.
Bright House asked the trial court to reduce the verdict by $1,283,670.00. They argued that $500,000 is reasonable for both past and future pain and suffering. The court denied the request.
Bright House appealed the verdict. On February 28, 2018, the appeals court (2nd DCA) said that the verdict was fine. On April 6, 2018, Harlow filed a document with the court saying that the insurance companies paid the entire judgment.
The appeal case number is 2D17-273. The trial court case number is 14-CA-011547.
$1.1 Million Verdict for Cervical Fusion (Fall off Balcony)
This isn’t my case. Amanda Fournier, a 17 year old, fell from a second-story balcony when she the railing of the balcony, upon which she was leaning, failed, resulting in her falling to the ground from the second story and suffering multiple spinal fractures and subsequent spinal fusion surgery.
The incident occurred on September 13, 2013 at a rental home owned by Derazi and rented by Daniel Diaz. She claimed that the plastic railing against which she was leaning at the time of the fall was in an unsafe and dangerous condition.
Amanda claimed that it was installed and/or maintained with drywall screws which are not intended for outdoor use. She also claimed that the brackets which held the railing in place did not have all the screws in place ensuring that it would meet code requirements.
Amanda also claimed that this dangerous condition was one that she couldn’t have readily discovered.
The Defense Claimed that Amanda Was Drunk (Intoxicated)
Derazi’s attorney initially claimed a defense, among others, that Amanda was impaired (intoxicated), and her intoxication caused her the incident.
In Florida, an injured person has no case if he or she:
(a) is under the influence of any alcoholic beverage or drug to the extent that the plaintiffs normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. Fla. Stat. 768.36.
The neurosurgeon at the emergency room hospital diagnosed her with a ligament injury at the C5-C6 level.
The C5-C6 spinal segment, consisting of the C5 and C6 vertebrae along with the C5-C6 disc in between, is located just beneath the middle of the cervical spine, and helps provide the neck with structural support and flexibility.
She had thoracic compression fractures. Below is an image of the thoracic vertebrae. Here compression fracture occurred at the top of the red area.
Thoracic vertebrae are in red.
A Doctor Put Rods and Screws In Her Neck (This Greatly Increased the Verdict)
On September 2013, Eric Nottmeier, M.D., the neurosurgeon put rods and screws into her neck.
He said that the surgery was successful. After the surgery, Fournier followed up in the clinic with x-rays. They showed good fixation, good fusion across the instrumented levels, with no instability of her spine.
He recommended a brace for treatment for the thoracic compression fractures. On April 2014, she had a CT of her cervical spine (neck). It revealed solid fusion crossed instrumentation. There was no lucency of the instrumentation.
(Areas of lucency around the inferior pedicle screws indicate that the hardware may be loose.) If the hardware is loose, it increases the value of the case.
Thoracic spine x-rays were done. They showed no change in her alignment. And the compression fractures were stable.
The compression fractures were still present at that time. However, they were stable. When compression fractures heal, they’ll heal in the position that they originally presented with. There was no further deformity or compression of those fractures at that visit.
Do Compression Fractures Ever Go Away?
Dr. Nottmeier said:
It’s highly unlikely a compression fracture will ever return to the normal block of bone that it was before.
What is the Ideal Outcome for a Compression Fracture?
Dr. Nottmeier said it is a:
stable compression fracture without any pain.
The neurosurgeon saw her 5 times. The last follow up was on February 2015.
In February 2015, she came back to see the neurosurgeon. She was having some increased neck and thoracic pain. The doctor didn’t order any x-rays. She had been participating in physical therapy and was 50 percent improved. In terms of pain, she was feeling better.
She had reported that she had been improving through physical therapy. The neurosurgeon offered to do some x-rays, but said it wasn’t absolutely necessary. Fournier said she was doing good enough. She didn’t want x-rays at that time.
She didn’t have any future appointments to see the doctor. The neurosurgeon said that whenever someone undergoes fusion in the spine, they’re always at risk for adjacent segment disease from that fusion.
What is Adjacent Segment Disease?
It’s when the disc above or below the fusion starts showing changes of degeneration, requiring extension of the fusion in the future. Dr. Nottmeier said that it’s commonly accepted that there is a risk of adjacent segment disease with any fusion of the spine. If you take out segments of the spine, it puts stress on adjacent motion segments.
On the other hand, he said that there’s a possibility that she won’t get adjacent segment disease.
Dr. Nottmeier said that studies have shown that people with prior cervical fusions on average have a 2 to 3 percent cumulative risk per year of symptomatic adjacent segment disease. Symptomatic means symptoms (problems).
Cumulative risk, in this case, means that over a 10 year period, she had a 20 to 30 percent chance of symptomatic adjacent segment disease.
Doctor Said She’d Likely Need a Fusion Surgery In the Future
The doctor said that if you assume that Amanda lived 60 more years, it’s more likely than not that she will develop adjacent segment disease to her fusion requiring treatment.
The neurosurgeon said that her fusion was solid, so she shouldn’t be at risk of having injury over the fused levels. Her adjacent levels will be under some increased stress.
So, in patients with a two-level fusion, if they are at risk of heavy contact sports or situations where they have significant trauma to their neck, they may be more prone to an injury than someone without a two-level fusion.
On July 17, 2017, the jury found that Derazi’s negligence caused her injury.
The jury awarded found 5% of fault on Amanda. They found Derazi 80% at fault, and Pi Kappa Phi Fraternity 15% at fault.
They awarded the following:
Past Medical Expenses: $145,547.88
Future Medical Expenses: $60,000
Past Pain and Suffering: $600,000
Future Pain and Suffering: $300,000
The total verdict was for $1,105,547.88.
If she had been much older, I think there is a greater chance that the jury wouldn’t have awarded her money for her fusion. Thus, the amount of money awarded for future medical expenses and future pain and suffering may have been much smaller.
The defendant can still appeal this verdict. However, the defendant didn’t claim that the amount awarded for pain and suffering or medical expenses was too high.
This is because the average full settlement value of a fusion surgery is under $1 million. Thus, if a renter purchased insurance from Thrifty, Dollar or Hertz, that insurance policy should cover the fair value of a fusion surgery case. At least in most scenarios.
The UM/UIM coverage applies (while occupying the car) for bodily injury and property damage.
Who insures Thrifty, Dollar and Hertz?
Ace American Insurance insures Thrifty. You should hire an attorney that can show you his past settlements with Ace. I’ve settled case with Ace. ESIS handles Thrifty’s car accident claims and settlements.
Rental Car Occupants Should Not Quickly Settle With the At Fault Driver
Assume that the at fault driver has $50,000 in BIL coverage. Let’s assume that the an injured rental car occupant has a fusion surgery. Here, the full value of the injured person’s fusion surgery case is worth much more than the at fault driver’s $50,000 BIL coverage limit.
In this instance, he or she should not quickly settle his or her injury case for $50,000 with the at fault driver.
Why not?
First, the injured person does not want to give up the right to make a UM claim. This can happen if the you don’t follow a particular UM claim procedure. The tourist can also lose his UM claim if the settlement release with the at fault driver’s insurer is poorly worded.
Second, the injured person does not want to end up in Federal court. He or she wants to keep the case in Florida state court. There are many advantages to keeping your case state court (instead of Federal court).
Which Rental Car Companies Offer $100K in UM Coverage in Florida?
Alamo Rent a Car and National Car Rental. If you rented a car from Alamo Rent a Car, hopefully you purchased Extended Protection (EP). EP is optional. It is not required.
EP includes UM/UIM coverage for bodily injury and property damage in an amount equal to the minimum financial responsibility limits applicable to the Vehicle (the Primary Protection).
EP also includes additional coverage through an excess liability policy, with limits for the difference between the statutory minimum underlying limits and $100,000 per accident.
Again, Florida doesn’t have a minimum UM limit. Thus, Alamo’s UM limit is $100,000 per accident.
Like Alamo’s EP insurance coverage is underwritten by Ace American Insurance Company.
Thus, I assume that Avis does not offer UM coverage in Florida.
Some Other Rental Car Companies Don’t Offer UM Coverage (in Florida)
Unfortunately, some Florida rental car companies don’t offer uninsured motorist coverage. This is true even if you purchase LIS coverage when you rent a car. Examples of companies that I’ve seen who don’t offer UM coverage are small (mom and pop) rental companies, Enterprise Rent a Car, Sixt, Advantage Rent a Car.
While companies like Sixt and Advantage Rent a Car may not offer uninsured motorist insurance, they do offer bodily injury liability (BIL) coverage. National Casualty Company (Nationwide) may insure Sixt in Florida.
Basically, if you want to be able to make an UM claim for a car accident in Florida, don’t rent a car through Sixt or Advantage Rent a Car.
Sixt Personal Accident Insurance (PAI) is underwritten by ACE USA.
Did you have a spinal fusion caused by an accident in Florida, or a cruise or boat? Do you have another type of injury?
I want to represent you if you were injured in an accident in Florida, on a cruise ship or boat.
