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The Plaintiff's Duty To Mitigate Damages

If you're injured due to someone else's negligence, you have to take reasonable steps to minimize the effects and loss related to your injuries. This is known as mitigating your damages. This obligation includes:

  • Seeking other employment if you've lost your job
  • Seeking retraining if your usual line of work is no longer possible

If you bring a personal injury case, the defendant will usually try to reduce the damages you can recover. The defendant does this by proving you failed to take reasonable steps to reduce your loss following your injury. Taking steps to mitigate your damages helps you avoid a reduction or denial of your claimed damages in your personal injury lawsuit.

This article discusses a plaintiff's duty to mitigate damages. The article addresses the various arenas to consider for mitigation purposes.

An Injured Plaintiff's Obligation To Reduce Damages

Even if you suffer a personal injury through no fault of your own, you must take reasonable steps to avoid further loss and decrease the consequences of your injury.

The rule of mitigation of damages denies or reduces your right, as a personal injury plaintiff, to recover that part of your damages a court or jury finds could have been avoided. You must act like an ordinary, reasonable person would have in a similar situation. As an injured plaintiff, when selecting a doctor or treatment for your injuries, you must act:

  • In good faith
  • With due diligence

You must also apply these same principles when seeking alternative employment.

Choosing Not To Have Surgery

Suppose you sustain an injury and fail to follow your treating doctor's recommendation to have surgery. In that case, you might be precluded from recovering damages for the consequences of your injury that could have been avoided or lessened by surgery.

You can't claim damages as a plaintiff for a permanent injury if the permanency of your injury could have been avoided by having surgery. The standard for this assessment is whether a reasonable person would have done so under the same circumstances. If the recommended surgery involves a risk of death or further injury, these factors are considered.

The use of general anesthesia alone isn't enough to justify failure to have a recommended surgery. However, you're not required to undergo surgery that is:

  • More than routine
  • Involves some hazard, or
  • Poses serious risks

Likewise, you're not required to undergo a major surgical operation. When determining whether you acted reasonably by declining treatment that might have lessened your damages, a court considers the probability that the treatment would have resulted in a cure or alleviated your injury. The question is whether the proposed treatment would have cured or reduced the injury.

Suppose an injured person claims lost future earnings. In that case, a court can consider whether a proposed surgery would likely help the injured person regain their ability to do work.

Failing To Seek Medical Care

Failing to see a doctor in a prompt or timely manner may also reduce your potential recovery in a personal injury case. This is true if a reasonable person would have sought medical treatment. A delay may be reasonable. For example, you might reasonably think a sore ankle is a sprain and treat it accordingly. You might later discover that you had a broken bone.

If the nature of your injury is obvious, you must act promptly. If you wait, your damages could be reduced if there's proof that your delay contributed to your injury.

It's important to note that failing to mitigate doesn't always serve as a bar to recovery. Often, a jury will simply reduce your damages award if your delay contributed to your injury or made it worse.

Refusing Medical Treatment or Disregarding Advice

Suppose a doctor recommends a course of treatment. In that case, you can't disregard your doctor's advice and then claim damages for conditions resulting from your failure to follow the advice. Your personal injury damages will be reduced or denied if a reasonable person would have followed the medical advice.

Suppose, for example, you fail to return to physical therapy as advised by your physician. In that case, the court might reduce the amount of damages you may otherwise been able to recover.

Mitigation and the Role of Insurance Companies

Suppose an insurance company can prove that you, as a plaintiff, failed to mitigate your damages. In that case, the insurance company can reduce its payout.

For example, suppose you suffer a back injury in a car accident. The affected insurance company may argue that you worsened your injury by not following your doctor's recommendation for physical therapy. If the insurance company can prove that your pain and medical bills increased because you didn't attend therapy, the company might reduce its payout.

Or suppose you sustain an injury in a slip-and-fall accident and then develop an infection because you didn't seek immediate medical attention. The insurance company might argue that prompt treatment could have prevented your infection.

Failing To Seek Employment

If your accident injuries keep you from performing your usual line of work, you can't just sit by in anticipation of recovering enhanced damages. Your damages will be reduced if you can do some kind of work but take no reasonable action to obtain that work.

For instance, you might be subject to reduced damages if you fail to keep several job interviews or appear at other interviews in unsuitable attire. The same is true if you refuse to accept an offer of suitable employment. You must make reasonable efforts.

Failure to Mitigate as an Affirmative Defense

In a personal injury lawsuit, the duty to mitigate damages is an affirmative defense for the defendant. That means the defendant bears the burden of proving that the plaintiff didn't take reasonable steps to reduce the impact of their injury. An affirmative defense argues that, even if the plaintiff's assertions are true, other facts or legal rules negate or reduce the plaintiff's right to recover damages.

Get Legal Help With Your Personal Injury Claim

If you're trying to determine whether you're taking all the necessary steps after sustaining a personal injury caused by someone else's negligence, speaking to a personal injury lawyer can be helpful. Contact a local personal injury attorney today.

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