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Exploring the “Duty to Mitigate” Requirement in Injury Cases

Written by Berkowitz

personal injury lawsuit

Experienced Injury Lawyer Helping Victims Mitigate Damages

During a personal injury case, you might have multiple terms tossed your way. Some of these words might be unclear or unknown to the public. Naturally, you can always ask your CT injury attorney for clarification any time you are unsure about a specific term.

However, the issue we focus on today is the victim’s duty to mitigate.

As the plaintiff, you might have a valid claim for damages because of a person’s breach of duty to exercise reasonable care. However, you also must mitigate the damages in your injury case – meaning you must reduce the costs associated with your case.

Your obligations are quite extensive regarding mitigation of your damages. You do what you can to reduce medical costs and unnecessary treatments. You must also do what you can to seek other employment or retraining when you cannot return to your job. However, it doesn’t end there.

Understanding the Plaintiff’s Obligations to Reduce Damages

Regardless if you have suffered an injury through no fault of your own, you have an obligation as the plaintiff to take the necessary steps to avoid any additional losses. That means you must minimize the consequences of your injury as best you can.

As the plaintiff, you are obligated to act in a way that a reasonable person would act in a similar situation – just as the defendant is expected to act with a reasonable person’s standard of care. Furthermore, the injured must act in good faith, use good judgment, and due diligence when making selections for their healthcare and employment following the injury.

The rule regarding “mitigating damages” means that you, the plaintiff, could be denied the right to recover specific damages if the court finds that you had the opportunity to decrease damages, but you did not.

The term “mitigate” means lessen. Damages do not only refer to physical damages –  but the financial damages that a victim would request compensation for in a personal injury claim. Damages that a victim must mitigate include:

  • Lost Wages
  • Pain and Suffering
  • Loss of Earning Capacity
  • Medical Costs

The True Burden of Mitigating Losses

The unfortunate part of this requirement is that the plaintiff’s decisions could be used against them – and a simple “bad call” could result in less compensation. For example, the victim cannot be forced to consent to any treatment, but if they choose to not use a specific treatment and suffer complications as a result; they cannot then seek compensation for any costs associated with the consequence of refusing the original treatment.

Refusing to Have a Surgical Procedure

In serious injuries, a physician might suggest a surgical procedure. Sometimes these procedures are emergent; therefore, it is obvious that the patient must have surgery or suffer severe consequences (if not death). Other times, surgery is a suggested procedure to speed up recovery or a suggestion to potentially reverse the effects of the accident.

A plaintiff cannot claim damages for any permanent injuries if the permanency of their injury would have been avoided by accepting the surgery. Therefore, a personal injury attorney would need to prove that a reasonable person would have refused the operation; thus, making any further complications still compensable.

The Risks of the Surgery

The risk of death or further injury is one factor the courts will consider when a plaintiff chooses to forgo surgery. An injured person does have the duty to mitigate damages, but they also can waive a surgical procedure that carries more risks than benefits. If, however, the surgical procedure is relatively simple and brings little to no risk, then the plaintiff is obligated to take that procedure – especially if it will reduce further complications.

For the courts to determine if the plaintiff did their job as far as mitigating damages, the courts must consider the probability that the treatment would have:

  • cured the victim,
  • reduced further complications associated with the injury.

Also, the court will ask if the surgery would have allowed the victim to return to work. Had they accepted the surgery and been able to return to work the courts may deny the request for loss of earning capacity and lost wages.

What About the Risks of Anesthesia?

Sadly, even though there are risks for general anesthesia, those chances are not high enough for a plaintiff to reject surgery. If the surgical procedure itself carries little risk, the plaintiff must accept the procedure if they want to fulfill their duty to mitigate damages.

Failing to Seek Medical Care

As the victim, you are required to seek medical care quickly or within the same amount of time a reasonable person would seek medical care to reduce potential damages and injuries.

Any delay in medical treatment could be seen as a failure to mitigate damages. Therefore, injury attorneys urge you to seek medical treatment right away even if you feel fine.

There are instances where delayed treatment is acceptable and will not reduce a plaintiff’s damages. For example, symptoms that do not show for days later. If a physician agrees that a reasonable person would not have noticed the same signs for a few days, then the courts may accept the injury. If, however, the victim suffered in pain for several days just waiting for it to go away, and the symptoms were visible, the courts may decide that the victim did not mitigate damages.

Using Alternative Treatments

Unless your treating physician suggests that you use an alternative treatment, doing so could result in a denial of your claim later. Alternative therapies are those not practiced by modern medicine, such as acupuncture, chiropractic care, and homeopathic remedies.

Typically, using these treatments in conjunction with traditional therapy – if your treating physician agrees – is fine.

Alternatively, if you are seriously injured, and you seek these non-medical treatments over seeing a physician, the court may determine your behavior violates your duty to mitigate.

Ignoring Medical Advice

It is critical that a plaintiff follow all medical advice given to him or her. This includes taking prescription medications, attending follow-up appointments, and following post-operative instructions. Any deviation from medical guidelines or recommendation could result in an argument that the plaintiff did not mitigate damages.

Do not put off treatments prescribed by your physician. If you disagree with a treatment plan, talk to your personal injury lawyer. You can seek a second opinion, but do not ignore a physician’s advice outright.

You must follow through on all treatments; otherwise, any complications (including more time off work) will not be compensated.

Employment and Failure to Mitigate Damages

Most personal injury claims include lost wages, and some will have the loss of earning capacity. Lost wages refer to the salaries you have already missed out on because of your injury. This can include hours off of work spent recovering, hours missed while attending doctor’s appointments, and other time you take off from work due to your injury.

Loss of earning capacity refers to your ability to make a living in the future. For example, if you are permanently disabled and cannot even return to work part-time, the defendant would be required to pay for wages you would have earned had you returned to work. Likewise, if you are partially disabled or your injury prevents you from returning to the same job, the defendant will compensate for these variances in your earning capacity.

Finding Balance Between Returning to Work and Preventing Injuries

Naturally, a plaintiff should not return to work too early. Doing so could make injuries worse, which in turn would give the defense an argument that the plaintiff did not mitigate damages. Likewise, taking too long to return to work or not exhausting all means to find gainful employment could be considered a violation of the plaintiff’s duty.

It is best to consult with your attorney and physician. If your physician clears you to return to work, then it is safe to go back to work. If your physician clears you only for light duty or restricts your work, speak with your attorney to ensure you are taking proper steps to mitigate damages.

Extending an Effort

The job market is not always accommodating. If there are no jobs, you still must show the courts you did what you could to find a job that would take you with limited abilities. Keeping logs of interviews, jobs you have applied for, and current job listings will help show that you tried to find employment. The more effort you put into finding work, the easier it will be to fight any claims that you failed to mitigate damages.

What if a Plaintiff Does Not Mitigate Damages?

A plaintiff will be unable to receive a more substantial settlement for further complications and costs associated with their injury if they fail to mitigate damages. The damages will be reduced based on how much of the plaintiff’s actions contributed toward future damages, as if they contributed to their injury in the accident.

Extraordinary Efforts Are Not Required

While you must extend every effort possible to mitigate damages, you do not have to go above and beyond. Instead, you must exercise a reasonable amount of energy when seeking employment, following medical treatments, and follow your physicians’ advice.

If you are not acting in a way that could worsen your condition or unreasonably increase damages, it should be simple for your attorney to defeat any arguments from the defense.

Injured? Consult with an Injury Attorney to Explore Your Duties

After you have sought medical treatment, the next step is to speak with an injury attorney. An attorney will review the facts of your case and not only determine if you have a valid claim, but help protect your case from claims that you failed to mitigate damages.

After your serious injury, you have enough to worry about. Therefore, let the attorneys at Berkowitz and Hanna, LLC assist you with your case, and help you to determine what the proper course of action should be at every turn.

Contact Berkowitz and Hanna, LLC to schedule a free case evaluation. Call us or contact us online to get started.