Personal Injury

Personal Injury Damages FAQ

By David Goguen, J.D., University of San Francisco School of Law
Most personal injury claimants have questions about the different kinds of compensation available to them. Read on for answers to some of the most common of these questions.

Q: Does my injury case have to go to trial for me to recover damages?

A: No. Most personal injury cases settle, and some even get resolved out of court before a lawsuit needs to be filed. And even if you file a personal injury lawsuit, chances are very slim that your case will proceed all the way to trial. “Damages” is just another term for the economic and non-economic losses stemming from your injury, and any settlement you receive is meant to compensate you for those losses. You don’t need a court judgment to recover damages. They can come from an insurance settlement. Learn more about personal injury insurance claims versus lawsuits.


Q: How does a prior injury affect the value of my claim?

A: Generally, a person who is negligent is responsible for the foreseeable harm that he or she caused. That means you have to prove there was negligence and that the negligence caused your injury. Even if you can only prove that the negligence made a pre-existing injury worse, you can still get compensation for the degree to which the condition was aggravated by the defendant’s negligence.


Q: Is there a minimum or maximum amount that can be recovered in a personal injury settlement?

A: No, there's no minimum or maximum settlement amount. Every case is different, and the settlement you get (assuming you get one) is heavily dependent on the seriousness of your injuries, the nature and extent of your medical treatment, your prospects for a full recovery, the nature of the defendant’s liability, the amount of available insurance coverage, and a whole host of other factors, including:

  • amount of your medical bills
  • your loss of past income
  • costs of future medical care
  • your age and earning capacity
  • any permanent limitations you now have
  • activities you can no longer participate in, or can’t enjoy as much
  • whether you would make a good witness on the stand, and
  • potential strength of other witness testimony

Learn more about average personal injury settlement amounts.


Q: What is "pain and suffering?"

A: Pain and suffering means not only the physical pain resulting from your accident and the medical treatment made necessary by it, but also any mental anguish, anxiety, worry, sleeplessness, and other psychological and emotional manifestations of your injuries. It may also include your inability to participate in or enjoy certain hobbies or activities. Learn more about how "pain and suffering" damages are calculated.


Q: What's comparative negligence?

A: “Comparative negligence” and "contributory negligence" are legal concepts that apply when the person making a personal injury claim is (or may be) partially responsible for causing the accident that led to their injuries. Different states follow different rules when the claimant is deemed partially at fault for the underlying accident. In comparative negligence states, the injured person’s damages (the money they receive) are reduced by a percentage equal to their share of fault. In the handful of contributory negligence states -- Alabama, Maryland, North Carolina, Virginia, and Washington D.C. -- the fact that the injured person bears any amount of blame will bar any monetary recovery against other at-fault parties.


Q: What's subrogation?

A: Generally, a health insurance plan or policy has a subrogation provision, which says that the injured person’s health insurance company is entitled to be reimbursed by the wrongdoer's insurance company, once a settlement is reached, for medical treatment provided to the injured person. Your lawyer usually handles this part of the settlement. Learn more about liens on a personal injury claim.


Q: When should I settle my case?

A: Not until you're sure of the nature and extent of your injuries and whether you'll need continuing medical attention. This stage is called “maximum medical improvement” (“MMI” for short) and it means that you’re completely recovered from your injuries, or are as recovered as you are expected to be. You should know the precise extent of any future medical care you’ll require, whether you'll be able to work in the future, and how the injury will affect your ability to do normal household tasks, sports and hobbies. Only then should you and your attorney discuss settlement with the insurance company or others. Once you’ve signed a release and accepted an injury settlement, you can’t “reopen” the claim by arguing that your injuries were worse than you originally thought they were.

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