Medical Testimony Should Say That Surgery Is "Reasonably Certain"

In the case of Wal-Mart Stores, Inc. v. Derrick Thornton, Case Number 4D16-4173 (Fla. 4th DCA March 7, 2018), Florida’s Fourth DCA held that testimony from a doctor that a “potential” future surgery would cost a certain amount was not improper to support an award for future medical expenses that are “reasonably certain to occur.”

Only The Award For Future Surgery Was Reversed

This case is a short case and involves a $150,000 award from the jury after the plaintiff’s doctor testified that “a potential future knee replacement surgery” would not exceed $75,000.

Naturally, Walmart appealed because the $150,000 is more than the estimate from the plaintiff’s doctor.  However, Walmart argued that the damages awarded “were against the manifest weight of the evidence.”  The Fourth DCA held that the only part of the jury verdict that was wrong was the award for future surgery.

At this juncture, I suspect that Walmart would not be agreeable to a remittitur of $75,000 and would likely demand a new trial just on the issue of future surgery.  Walmart is self-insured and would likely want to fight knowing that their worst day on future surgery (having lost the rest of the trial already) is just another $75,000.

“Potential” Surgery May Suffice But “Reasonably Certain” Is Still Better

Be that as it may, the lesson to be learned from this case is not really about additur and remittitur.  Instead, the real lesson is that while testimony about “potential” future surgery may have sufficed in this case (because the jury was persuaded), it may not suffice in the next (where the jury is not persuaded).

The proper legal standard to get in testimony from a plaintiff’s medical providers is that surgery in the future is reasonably certain to occur (or within a reasonable degree of medical probability).  Florida personal injury cases are often highly technical, including the use of such “buzz” words.  If your doctor does say the right “buzz” words, then you may not get paid for your claim.

Call Us For Help With Your Personal Injury Case

The challenges to personal injury plaintiffs in Florida are ever expanding and you will need help to take on multi-billion dollar mega-corporations and insurance companies.  For a free consultation with a Lakeland, FL personal injury attorney about your case, contact us to schedule an appointment.

Back to our main blog page