By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.
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The losses that make up the value
A brain injury award is a sum of parts, and California’s official civil jury instructions (CACI) describe each part. With a brain injury, the two items that move the number most often are future care and lost earning capacity, because both reach years into the future. Future medical expenses must be care the person is “reasonably certain to need” (CACI No. 3903A). A claim for lost earning capacity does not require a work history (CACI No. 3903D), which matters when the injured person is young or was between jobs.
The rest of the award covers pain, mental suffering, loss of enjoyment of life and physical impairment. CACI No. 3905A tells jurors that “no fixed standard exists” for these losses, so they decide a reasonable amount from the evidence and their common sense. For a fuller list of damage categories and the California deadlines, see our guide to TBI claims in California.
How each state counts past medical bills
The amount on a hospital bill is often far higher than what an insurer actually paid. Each of the three states handles that gap its own way.
- California: a medical expense must be both incurred and reasonable, and a plaintiff cannot recover more than the actual loss, so a privately insured plaintiff generally recovers no more than the amounts paid by the plaintiff or the insurer, or still owing (Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541). A patient who has insurance but chooses to treat outside the plan is treated as uninsured for this purpose (Pebley v. Santa Clara Organics, 2018).
- Texas: recovery of medical expenses “is limited to the amount actually paid or incurred” (Tex. Civ. Prac. & Rem. Code § 41.0105). The Texas Supreme Court held that amounts a provider has no right to collect cannot be recovered and that only evidence of recoverable expenses is admissible at trial (Haygood v. De Escabedo, 2011).
- Washington: an injured person may recover the reasonable value of medical services and cannot rely only on the medical records and bills to prove the charges were reasonable. That rule comes from the published decision in Patterson v. Horton (1997) 84 Wn. App. 531, which the Court of Appeals quoted and applied in Beltran-Serrano v. City of Tacoma (2019, unpublished and not binding).
Fault, caps and punitive damages by state
| Rule | California | Texas | Washington |
|---|---|---|---|
| Your own share of fault | Reduces the award; never a bar (Li v. Yellow Cab) | Reduces the award (§ 33.012); no recovery above 50% (§ 33.001) | Reduces the award; never a bar (RCW 4.22.005) |
| Limit on noneconomic damages | MICRA limits in claims against health care providers (Civ. Code § 3333.2) | $250,000 per claimant against physicians and providers, with separate institution limits (§ 74.301) | The 1989 statutory limit was struck down as a violation of the jury right (Sofie v. Fibreboard) |
| Punitive damages | Clear and convincing proof of oppression, fraud or malice (Civ. Code § 3294) | Clear and convincing proof, then capped (§§ 41.003, 41.008) | Not allowed without a statute that authorizes them (Dailey) |
The fault rule is the one that most often changes a brain injury case. A defense lawyer may argue that you were speeding, not wearing a helmet or not watching where you walked. In California and Washington, a finding of 30% fault cuts the award by 30%. In Texas the same finding also cuts it by 30%, but a finding above 50% ends the claim.
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Insurance often sets the practical ceiling
A verdict is only worth what can be collected. The minimum bodily injury liability coverage for one injured person is $30,000 in California for policies issued or renewed on or after January 1, 2025 (Vehicle Code § 16056), $30,000 in Texas (Transportation Code § 601.072) and $25,000 in Washington (RCW 46.29.090). When a driver carries only the minimum, your own policy may add money through an underinsured motorist claim. A business, landlord or trucking company usually carries more, so finding every policy early is part of valuing the case.
What this means for your case
Keep every bill and every explanation of benefits from your health plan, since those papers show what was actually paid. Ask your doctors in writing what care they expect you to need and for how long. Do not let an adjuster’s early number anchor your thinking, and read how to respond to a lowball offer before you answer one. Because the medical picture drives the value, timing matters too: see how long brain injury cases take. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Browse more answers in our injury FAQs.
Common questions
Is there an average settlement for a traumatic brain injury?
Averages mix concussions that healed in weeks with injuries that ended careers, so they tell you nothing about your own case. The value of a claim comes from your records, your losses, the proof of fault and the insurance in play.
Does a normal CT scan lower what my case is worth?
It can make the case harder to prove, which insurers use to argue for less. The National Institute of Neurological Disorders and Stroke says current imaging and blood tests cannot always detect damage from mild injuries. Our page on mild traumatic brain injury claims explains how these cases are built.
Can I be paid now for therapy I will need years from now?
Yes, in California, if the evidence shows you are reasonably certain to need that care (CACI No. 3903A). A settlement is usually final, so the future care has to be counted before you sign.
Does Medicare have to be paid back from my settlement?
If Medicare paid for injury-related care, the Centers for Medicare & Medicaid Services says those conditional payments must be repaid when a settlement or judgment is paid (CMS).
Does it matter which state my case is in?
Yes. The rules on medical bills, shared fault and damage limits in the table above differ, and each can change the final number. Beverly Law offers a free case review in English or Spanish at (310) 552-6959. You owe no fees or costs unless we win.
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Related pages
Sources
- Judicial Council of California Civil Jury Instructions (CACI Nos. 3903A, 3903D, 3905A) (courts.ca.gov)
- Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (scocal.stanford.edu)
- Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266 (Justia summary) (insurancelawopinions.justia.com)
- Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (scocal.stanford.edu)
- Cal. Civil Code § 3333.2 (MICRA) (leginfo.legislature.ca.gov)
- Cal. Civil Code § 3294 (punitive damages) (leginfo.legislature.ca.gov)
- Cal. Vehicle Code § 16056 (minimum liability limits) (leginfo.legislature.ca.gov)
- Tex. Civ. Prac. & Rem. Code § 41.0105 (paid or incurred) (statutes.capitol.texas.gov)
- Haygood v. De Escabedo (Tex. 2011), No. 09-0377 (law.justia.com)
- Tex. Civ. Prac. & Rem. Code § 33.001 (more than 50% bar) (statutes.capitol.texas.gov)
- Tex. Civ. Prac. & Rem. Code § 33.012 (reduction by percentage) (statutes.capitol.texas.gov)
- Tex. Civ. Prac. & Rem. Code § 74.301 (health care noneconomic limits) (statutes.capitol.texas.gov)
- Tex. Civ. Prac. & Rem. Code §§ 41.003, 41.008 (exemplary damages) (statutes.capitol.texas.gov)
- Tex. Transportation Code § 601.072 (minimum liability limits) (statutes.capitol.texas.gov)
- RCW 4.22.005 (comparative fault) (app.leg.wa.gov)
- Beltran-Serrano v. City of Tacoma, No. 51317-0-II (Wash. Ct. App. Aug. 20, 2019) (unpublished), applying Patterson v. Ho (courts.wa.gov)
- Sofie v. Fibreboard Corp. (1989) 112 Wn.2d 636 (law.justia.com)
- Dailey v. North Coast Life Ins. Co. (1996) 129 Wn.2d 572 (law.justia.com)
- RCW 46.29.090 (minimum liability limits) (app.leg.wa.gov)
- NIH/NINDS, Traumatic Brain Injury (ninds.nih.gov)
- CMS, Medicare's Recovery Process (cms.gov)
Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.