People injured in public places, or as a result of negligent medical treatment are only entitled to claim for pain and suffering damages if they are accepted as suffering a permanent "significant injury". This is defined as more than 5% physical impairment or more than 10% psychaitric impairment. This impairment is assessed under the American Medical Association's Guides to Permanent Impairment.
If the Defendant does not accept our medical evidence stating that an injured person suffers a significant injury, it can be referred to the Medical Panel. This involves the injured person attending for a medical examination by a group of 2 or more independent doctors, who are trained in performing AMA assessments. The decision of the Medical Panel is then final and can only be appealed in limited circumstances. That means that if the Panel does not find a person to suffer a significant injury, the person is then prevented from claiming for pain and suffering damages.
The need to suffer a permanent significant injury can lead to substantial unfairness if a person has been badly injured and suffered greatly because of a negligent act, but then after a long period of recovery, is not left with a significant impairment. In a recent case Adviceline Injury Lawyers acted for a client who had contracted legionnaires disease through the unsafe storage of water at a car wash centre. Our client almost died from the legionnaires disease and was in intensive care for several days. He then made a slow, but steady recovery over the following 12 months and he has now only been left with lethargy and some mild breathing problems. The Medical Panel held that such problems did not meet the significant injury threshold and thus he was not entitled to claim for pain and suffering damages.
Fortunately such Medical Panel decisions are rare. Most injured people who are referred to the Panel with supportive medical evidence are accepted as suffering a significant injury and are able to proceed with a case. However the few that miss out end up being the victims of this legislative requirement that then allows insurance companies to avoid responsibility for the harm caused.