Florida law entitles you to financial recovery for pain and suffering in addition to your medical bills and lost wages, provided you are found to be 50% or less at fault for the accident under Florida’s modified comparative negligence standard. Since pain and suffering have no receipts, invoices, or pay stubs to document them, Florida personal injury attorneys use the per diem argument to calculate those damages.
Per diem argument works by assigning a daily dollar value to your suffering and multiplying it by the number of days you have suffered.
How the Per Diem Argument Works
Per diem means “by the day.” Your attorney assigns a daily dollar value to your pain and suffering and multiplies that figure by the number of days you have suffered. Two separate periods are calculated: past suffering from the date of your accident through the date of trial, and future suffering projected forward using actuarial life expectancy tables.
Here’s a basic example:
- Daily rate: $150
- Days from accident to trial: 365
- Past pain and suffering damages: $54,750
For permanent or long-term injuries, the calculation extends forward using actuarial life expectancy tables:
- Daily rate: $150
- Remaining life expectancy: 25 years (9,125 days)
- Future pain and suffering damages: $1,368,750
Why the Per Diem Method Is More Effective Than a Lump Sum
When an attorney asks a jury for a lump sum pain and suffering figure like $1.3 million without a calculation behind it, the defense can characterize that number as arbitrary and excessive. The per diem method gives the jury a calculation they can evaluate on its own terms. To dispute the total, the defense has to dispute either the daily rate or the number of days, both of which your attorney will support with direct evidence.
What the Daily Rate Covers
Florida law defines non-economic damages more broadly than physical pain alone, and each category below can factor into the daily rate your attorney proposes.
- Physical pain and discomfort from the injury itself and any ongoing treatment
- Mental anguish, including anxiety, depression, or post-traumatic stress that developed as a result of the accident
- Loss of enjoyment of life, meaning activities and experiences you can no longer participate in
- Loss of capacity to enjoy life, which Florida law treats as a separate category from loss of enjoyment and addresses the permanent reduction in your ability to experience the quality of life you had before the injury
Your attorney has to identify every category that applies to your situation and build the daily rate to reflect the full scope of what the injury has taken from you, not just the physical symptoms documented in your medical records.
Evidence in Per Diem Arguments
Florida allows the per diem argument as a method for presenting non-economic damages to a jury, but the daily rate has to be supported by the evidence. Florida judges can reject rates for past and future suffering that are not grounded in the documented facts of the injury.
Past Suffering
Evidence that documents past suffering may include:
- medical records
- treatment history
- your own testimony
- statements from people close to you who can describe how your injury has affected your daily life from the date of the accident through trial.
Future Suffering
To prove future suffering may require:
- Specific medical expert testimony on your prognosis, the expected duration of your symptoms, and what permanent limitations you will live with going forward.
- Actuarial life expectancy tables establish the number of days the calculation covers.
Age Affects the Calculation
A younger plaintiff with a permanent injury and a longer life expectancy will have a larger future damages calculation than an older plaintiff with the same injury. Defense attorneys routinely challenge life expectancy projections and argue that the plaintiff’s condition will improve over time, so your attorney needs medical testimony that addresses the long-term trajectory of your specific injury.
How Per Diem Arguments Affect Settlement
Most Florida personal injury cases settle before trial. Insurance adjusters evaluate cases based on what a jury is likely to award at trial, so a thoroughly documented per diem argument with a supported daily rate will affect the settlement value of your case in addition to the trial outcome.
An adjuster presented with a specific daily rate tied to medical records, expert opinions, and a documented life expectancy calculation has to respond to each component individually. They have to justify why the daily rate is too high, why the duration is too long, or why the medical evidence doesn’t support the prognosis your attorney is projecting, which is a more difficult negotiating position than simply countering a lump sum with a lower lump sum when there is no calculation behind the demand.
Per Diem Arguments Apply Regardless of Employment Status
Pain and suffering damages are not tied to your income or your ability to work. A stay-at-home parent, retiree, or student has the same right to recover for daily pain and suffering as a salaried employee. A parent who can no longer drive their children to school, prepare meals, or physically care for their family has suffered measurable losses your attorney can build a rate around. A retiree who can no longer fish, golf, travel, or do the physical activities they had planned their post-work life around has an equally legitimate basis for a daily rate.
The daily rate still has to be supported by documented evidence of how the injury has affected daily life, but the absence of a paycheck does not reduce the value of what the injury has taken from you.
What Can Weaken a Per Diem Argument
Several factors give the defense grounds to attack your daily rate, the duration of your suffering, or both.
- Gaps in medical treatment. If you stopped treating for weeks or months and then resumed, the defense will argue your symptoms had resolved during that period and that the gap in your records is proof of it.
- Inconsistent statements. If what you tell your doctor differs from what you tell your attorney, or what you post on social media contradicts what you claim about your daily limitations, the defense will use those inconsistencies to challenge your credibility with the jury.
- Pre-existing conditions. If you had a prior injury to the same part of your body, your attorney has to clearly establish in the medical evidence what the accident caused versus what pre-existed it. Florida law allows you to recover for the aggravation of a pre-existing condition, but the distinction has to be drawn precisely or the defense will use the prior condition to dispute the entire damages calculation.
Be upfront with your attorney about all factors from the start of your case to give them the information they need to build around the weaknesses before the defense exploits them at trial.
How the Defense Uses Independent Medical Examinations to Attack the Per Diem
The defense in a Florida personal injury case has the right to send you to a physician of their choosing for a compulsory medical examination, referred to under Florida Rule of Civil Procedure 1.360 as a CME, though you will frequently hear them called IMEs. In practice, IME physicians are paid by the defense and their reports frequently conclude that your injuries are less severe than your treating physician has documented, that your symptoms have resolved, or that your ongoing complaints are not supported by objective findings.
The IME report becomes one of the defense’s primary tools for challenging both the daily rate and the duration your attorney has proposed. If the IME physician concludes that your symptoms resolved six months after the accident, the defense will use that conclusion to argue that your per diem calculation should end at six months rather than extend through trial or into the future.
Your attorney has to be prepared to challenge the IME physician directly: cross-examining them on the brevity of the examination, their financial relationship with the defense, the number of IMEs they perform annually for defense firms, and the specific ways their conclusions conflict with your treating physician’s documented findings over months or years of actual care. A thorough cross-examination of an IME physician can significantly undermine the defense’s effort to reduce your daily rate or shorten the duration of your damages calculation.
Working with Our Attorneys
The personal injury attorneys at Lesser, Landy, Smith & Siegel have been handling personal injury cases across Florida for three generations.
In cases that call for a per diem argument for damages, our attorneys build the daily rate, assemble the medical evidence behind it, and anticipate the specific challenges the defense will raise at trial and during settlement negotiations.
If you’ve been seriously injured in Florida, contact us at (561) 655-2028 for a free case review. There are no fees unless we recover compensation.
