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Damages in a Personal Injury Claim

The categories of loss an injured person can be compensated for - the bills and lost earnings, the pain and the lost enjoyment of life - plus the separate and rarer category meant to punish, and the state caps that limit some of them.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Damages is the legal word for the money a court awards, or an insurer pays, to compensate for an injury. The categories matter because each is proved differently and some are capped. Economic damages are the losses that can be counted: medical bills already incurred and reasonably expected in future, wages lost and earning capacity reduced, the cost of care and of adapting a home, property damage. Non-economic damages are the real losses that have no invoice: physical pain, emotional distress, disfigurement, loss of the ability to do the things the person did before, and - for a spouse - loss of the relationship's companionship and support, known as loss of consortium.

Punitive damages are different in kind. They are not compensation; they are a penalty imposed on a defendant whose conduct was malicious, reckless or in conscious disregard of others' safety, and they are unavailable in ordinary negligence cases. Most states require a higher standard of proof for them, several cap them or direct part of any award to the state, and the Supreme Court has held that the Constitution's due-process guarantee limits how large they may be relative to the actual harm.

Several state rules shape the number that is finally paid. Many states cap non-economic damages in medical-malpractice cases and some cap them in all injury cases; those caps have been upheld in some states and struck down under state constitutions in others. The "collateral source" rule - whether a defendant gets credit for medical costs that the injured person's own insurer paid - has been abolished or modified in many states. And an award or settlement is subject to reimbursement claims from health insurers, Medicare and Medicaid, which are covered under the subrogation entry.

Where this comes from

Damages law is state common law overlaid by state statute: the categories and their proof are set by each state's courts, and caps, the standard of proof for punitive damages and the collateral-source rule by each state's legislature and constitution. The federal constitutional limit on punitive damages comes from BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). Compensation for physical injury is generally excluded from federal income tax under 26 U.S.C. § 104(a)(2); punitive damages and interest are not.

When people hire a lawyer for this

Valuing a claim is the thing an injured person cannot do alone, because the largest components - future medical care and non-economic loss - are proved by evidence that has to be assembled, not by adding up bills. A lawyer's early involvement also changes what the future-care evidence looks like, and knowing whether the state caps the claim and how the insurer's reimbursement rights will be handled is what turns a headline figure into the amount actually received.

Find a lawyer for this in your state

Choose your state. Each link opens the directory page for the city in that state with the most currently published law firms in this practice area; a +n beside the city is how many other cities in the state also have one. The list is generated when this page loads, so a state whose listings have lapsed drops out rather than becoming a dead link.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.