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The Plaintiff's Duty to Mitigate Damages

Injuries can adversely affect your life. When a person is injured through the negligence of someone else, they are obligated to take reasonable steps to minimize the effects and loss related to their injuries. This obligation includes seeking other employment and/or retraining if the person's usual line of work is no longer feasible.

A defendant in a personal injury case will often try to reduce the amount of damages the plaintiff may recover. They will do this by proving the plaintiff failed to take reasonable steps to reduce their loss following the injury. For this reason, it is important for the plaintiff to take these steps to avoid a reduction or denial of their damages.

This article discusses the plaintiff's duty to mitigate damages.

The Injured Plaintiff's Obligation to Reduce Damages

Even a person who suffers personal injury through no fault of their own has an obligation which requires them to take reasonable steps to avoid further loss. They must also take steps to minimize the consequences of the injury.

The rule of "mitigation of damages" denies or reduces a personal injury plaintiff the right to recover that part of their damages that the court or jury finds could reasonably have been avoided or mitigated. A personal injury plaintiff's obligation is to act in a way that an ordinary, reasonable person would have in a similar situation. An injured person must act in good faith and with due diligence when selecting a doctor or treatment for their injuries. The injured person must also apply these same principles when seeking alternative employment.

Choosing Not to Have Surgery

Sometimes an injured person's doctor will recommend surgery as a method of treating an injury. In such a case, an injured person may choose not to have the surgery and no one can make them consent to it. However, an injured person may not recover damages for the consequences of an injury that could have been avoided or significantly lessened by surgery or another form of treatment.

A plaintiff can not claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery or other treatment. The standard for this assessment is whether a reasonable person would have done so under the same circumstances. If the proposed surgery involves a risk of death or further injury, these factors are taken into consideration. The judge or jury must determine whether a reasonable person would have undergone the surgery.

For example, let's say a recommended surgery is simple and has a good record of success. There is no high risk of death or further injury. In this instance, the injured may be obligated to lessen their damages by undergoing the surgery.

The use of general anesthesia alone is not enough to justify an injured person's failure to have the surgery. An injured person is not required to undergo surgery that is more than routine, involves some hazard, or poses serious risks. Likewise, an injured person is not required to undergo a major or serious surgical operation. In that instance, they can choose to live with the injury and may still receive compensation for it.

When determining whether an injured person acted reasonably by declining surgery or treatment that may have lessened their damages, it is proper to consider the level of probability that the treatment would have resulted in a cure or alleviated the injury. The question is whether the proposed treatment would have cured or reduced the injury.

In cases where an injured person makes a claim for lost future earnings, a court can consider whether the proposed surgery would likely help the injured person regain his ability to do work.

Failure to Seek Medical Attention

Failure to see a doctor in a prompt or timely manner may also reduce the victim's recovery potential. This is true if a reasonable person would consider the required medical care. In some instances, a delay may be reasonable. For example, a person may think a sore ankle is merely a sprain and treat it accordingly when, in fact, it is actually a break.

If the nature of an injury is fairly obvious, however, the injured must act in a reasonably prompt manner. If they wait, damages could be reduced or not allowed where there is proof that the delay contributed to the injury.

It is important to note that failure to mitigate doesn't always serve as a bar to recovery. Oftentimes, a jury will simply reduce the award where the delay contributed to the injury or made it worse.

Refusing Medical Treatment/Disregarding Advice

Where a doctor or other medical care provider recommends a course of treatment or gives other advice, an injured person cannot refuse the treatment or disregard the doctor's advice and then claim damages for conditions that resulted or persisted because of the failure to follow the advice. An injured person's damages will be reduced or denied if a reasonable person would have followed the medical advice. It is also a requirement that failure to follow the advice resulted in either a lack of improvement or an aggravation of the injury.

For instance, where an injured person unreasonably refuses to lose weight as advised by their treating physicians, the resulting damages may be accordingly reduced. Likewise, an injured person's failure to return to a doctor or other medical care provider for a continuing condition, especially where persistent pain is involved, may reduce a plaintiff's recovery.

Use of Alternative Treatment

It used to be fairly obvious that an injured person should see a doctor to treat an injury. However, the rise of alternative treatments such as acupuncture, chiropractic, holistic, and homeopathic remedies have become increasingly popular. Using these alternative means instead of seeking prompt medical treatment can be unreasonable. This may lead to a reduction in the amount of damages an injured person may recover.

Failure to Seek Employment

Finally, a person whose injuries keep them from their usual line of work, but who can work in other types of jobs, cannot sit idly by watching their losses grow in anticipation of recovering enhanced damages. An injured person's damages will be reduced where they can do work of some kind where such employment is available, but no effort was made to obtain such work.

For instance, a 24-year-old quadriplegic injured in a car crash had his damages significantly reduced when he failed to attempt to obtain employment or enroll in any college courses. In another instance, a longshoreman had his past and future earnings reduced by 20% when he failed to keep a number of job interviews, appeared at other interviews in unsuitable attire, and was unwilling to accept employment that would not provide him with a wage equal to the amount he had been making prior to his injury.

Discuss Your Questions About a Plaintiff's Duty to Mitigate With a Lawyer

The duty to mitigate damages is just one of the many responsibilities plaintiffs have in an injury claim. An attorney can help answer any questions you may have and advise you about the next steps moving forward.

If you're curious about your responsibilities as a plaintiff and the strength of your case, you should get in touch with a local personal injury attorney today.

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