Close X

Damages in a Personal Injury Case

Damages in a California Personal Injury Case

Attorney Michael Rehm

Determining the value of any Personal Injury case ultimately comes down to an analysis of potential damages. As stated in Civil Code §3281: “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”

There are multiple types of damages that can be collected in a Personal Injury case, the first type is called Compensatory damages. The goal of compensatory damages is to “make the plaintiff whole.” In other words, an attempt is made to put the person injured in the same position they would have been in without the injury ever occurring. This is generally referred to as the “made whole” rule. Civil Code §3333 defines compensatory damages in Personal Injury matters.

Civil Code §3333: For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.

There is no set way that the courts advise the jury to determine compensatory damages. It is based on the facts of each case, but the goal is to put the plaintiff in the same position they would have been if no injury occurred, at least financially. This means that damages already incurred, present damages and future damages are recoverable.


There are two separate types of compensatory damages: “general damages” and “special damages.” General damages are the non-economic damages, commonly referred to as pain and suffering. Special Damages are economic damages, the medical bills, the lost earnings, all out-of-pocket expenses incurred because of the injury.


MEDICAL EXPENSES: as stated above, special damages include medical expenses, both for the past and the future. The plaintiff in a Personal Injury case has a right to recover the reasonable value of medical expenses. For past medical expenses, the plaintiff must prove:

  1. The reasonable cost;
    2. Of reasonably necessary medical care
    3. That was received. (CACI 3903A)

In other words, the plaintiff must show that whatever medical expenses are being claimed are reasonable in regards to the expense of the treatment and the necessity of the treatment, and that the treatment is for the injury that that the defendant caused.

The plaintiff can prove this in court with adequate documentation of the medical bills. The plaintiff can prove the necessity of the treatment through witness testimony, ideally the treating physician's testimony, but if they are unavailable, an expert witness can testify as well as to the necessity of the treatment provided.

To recover for future medical expenses, the plaintiff must prove that the medical expenses incurred are:

  1. Reasonably priced; and
  2. They are reasonably necessary; and
  3. They are reasonably certain to be needed in the future. (CACI 3903A)

Once again, to show this proof in court, medical expert testimony will be needed. It does not necessarily have to come from the treating physician, in fact an economist can testify to the cost aspect of the analysis. But medical expert testimony will be needed to justify future medical expenses.

A couple of bullet points in regards to medical expenses:

  • In determining the reasonable amount of medical bills for past medical expenses, the correct value is not the actual bill, but the amount paid or required to be paid. Most health insurance providers have contracts with other providers for a reduced rate for services, and this rate is the number that will be used in calculating damages. So, if you use Medi-Cal, for example, and the services are billed at $30,000, but Medi-Cal is only required to pay $20,000 to satisfy the debt, the correct amount used to determine medical expenses would be $20,000. This represents a change in the law, determined most recently by the California Supreme Court in the case of Howell v. Hamilton Meats & Provisions Inc., (2011) 52 CAL 4th 541.
  • However, in the example above the “collateral source rule” still applies to the $20,000. This means that the defense cannot argue that since a third party paid for the bill, it should not be used in calculating damages at all. The collateral source rule stands for the principle that the defendant who caused the injury should not benefit because the plaintiff has collateral sources helping with bills. The collateral sources cannot be taken into consideration when determining damages.
  • Damages awarded in relation to an injury are not taxable income. However, damages awarded for pain and suffering, where there is no underlying physical injury are subject to taxes, unless the damages are used for medical care.

LOSS OF EARNINGS – Loss of earnings, loss of future earnings and the inability to pursue a career are additional “special damages,” that the plaintiff is entitled to in a Personal Injury case.

Loss of earnings includes any wages, commissions, bonuses, or any other financial earnings or fringe benefits that would have been obtained if the injury did not occur. One who is traditionally employed will be entitled to recover those earnings lost or that will be lost because they were absent at work. Generally, the proof needed for lost earnings is pay stubs, W-2 forms, etc. Testimony from the person injured or coworkers, accountants or clients of the injured can all be used to corroborate the documentation and provide a stronger foundation for the jury to base their decision on.

Loss of future earnings includes all the above that the injured party would have recovered if the injury did not occur. This also includes benefits, including social security, for any lost time/years that could have been contributed. Remember that the goal of damages is to put the injured party in the same situation as if the injury never occurred. The standard for proving future lost earnings is like proving future medical expenses, in that you must prove that the future earnings were reasonably certain to occur minus the injury. To show the earnings were reasonably certain to occur, the injured must show two things: (1) how long they will not be able to come back to their previous position or work in general; and (2) the amount they would have earned if the injury did not occur.

Generally, the length of time it will take to return to their job or to any job can be established by testimony from a medical expert. They should be able to give an expert opinion on how long the injury will preclude the individual from working in general or to the level prior to the injury.
In regards to the reasonable certain amount of earnings, an economist expert or an expert in the field of employment would be needed, unless the injured party can testify competently to what they would have earned, Several factors go into this analysis including the actual earnings the injured person was making at the time of the injury, the chances of promotion, the life expectancy of the injured person, and overall economic trends, and economic trends of the profession the injured party is involved in.

Inability to Pursue a Career – The injured party is also entitled to recover damages if the injury is so severe that they will not be able to pursue their intended career. Here, the damages amount should reflect the amount that would have been earned, minus the amount the injured party will earn from any alternative employment, if that is even a possibility.

Expert witness testimony from an economist will be necessary to prove how much would have earned. Different factors are taking into consideration in determining whether the injured intended to pursue a career or not. Obviously, testimony from witness's familiar with the injured party's plans, and how far the injured party has come in pursuing those plans are all relevant. Also, as stated in the case of Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th164, “[T]he majority view is that no deduction is made for the injured party's expected living expenses during the lost years.”

The law surrounding damages is complex. If you have been injured in an accident, it is of utmost importance to obtain an attorney who understands the law surrounding damages, as it is often the most crucial aspect to your case.   For more information on damages and what to expect in your matter, Michael Rehm is available for free consultations at (619) 787-3456


 San Diego Personal Injury Attorney

Southern California Areas Served:

Phone: (619) 787-3456 Areas Served: San Diego, Vista, Chula Vista, El Cajon, Escondido, San Marcos, Oceanside, Carlsbad, Encinitas, El Centro, Los Angeles, Long Beach, Santa Clarita, Glendale, Lancaster, Palmdale, Pomona, Torrance, Pasadena, El Monte, Downey, West Covina, Norwalk, Burbank, Anaheim, Santa Ana, Irvine, Huntington Beach, Garden Grove, Costa Mesa, Riverside, Corona, Moreno Valley, Ontario, Rancho Cucamonga, San Bernardino, Santa Barbara, Santa Maria, Ventura, Simi Valley, Thousand Oaks, San Luis Obispo, Paso Robles, Temecula, Bakersfield, Clovis, and everywhere in between.

Bay Area Areas Served

Phone: (831) 431-0986 Areas Served: Santa Cruz, Aptos, Capitola, Watsonville, Salinas, Monterey, Seaside, Carmel, San Francisco, Oakland, Fremont, Hayward, Berkeley, Livermore, Concord, Richmond, Walnut Creek, Antioch, San Rafael, Novato, San Jose, Morgan Hill, Sunnyvale, Santa Clara, Palo Alto, Cupertino, Gilroy, Los Gatos, Napa, Santa Rosa, Petaluma, Fairfield, Vallejo, Vacaville, Dixon, Solano County, San Benito, Daly City, San Mateo, South San Francisco, Redwood City, Belmont, San Carlos, San Bruno, Pleasanton, Union City, San Leandro, Milpitas, Pittsburg, Danville, Rohnert Park and the entire Bay Area.

Northern California Office & Areas Served

333 University Avenue; Suite 200 Sacramento, CA 95825 Phone: (916) 233-7346 Areas Served: Sacramento, Elk Grove, Antelope, Citrus Heights, Carmichael, the friendly confines of Land Park, Folsom, Yolo, Woodland, West Sacramento, Davis, Placerville, South Lake Tahoe, Cameron Park, El Dorado Hills, Auburn, Roseville, Rocklin, Lincoln, Yuba City, Marysville, Wheatland, Colusa, San Joaquin County, Lodi, Manteca, Stockton, Tracy, Lathrop, Modesto, Turlock, Oakdale, Stanislaus County, Humboldt County, Arcata, Mckinleyville, Fortuna, Eureka, Butte County, Oroville, Paradise, Chico, Mendocino, Ukiah, Colusa, Shasta County, Redding, Calaveras, Yreka, Amador, Jackson, Lassen, Susanville, Plumas County, Quincy, Nevada County, Grass Valley, Nevada City, Truckee, Lakeport, Sonora, Madera, Crescent City, Trinity, and all of Northern California.