For someone pursuing a personal injury claim to recover damages, it may seem counterintuitive that he be required take steps to minimize the effects of his injury. After all, isn’t the idea to maximize losses to recover the most compensation available?
Maybe, but every plaintiff who suffers personal injury has an obligation to take reasonable steps to avoid further loss and to minimize the consequences of the injury. This is known as the mitigation of damages rule.
Duty to Mitigate
According to mitigation of damages rule, a plaintiff does not have the right to recover any part of his damages that could have been reasonably avoided if the plaintiff had acted in a way that an ordinary, reasonable person would have acted in a similar situation. This means that an injured person must act in good faith and with due diligence regarding the selection of a health care provider and obtaining treatment for his injuries.
Failure to Mitigate
Some examples of failure to mitigate damages include:
- Failing to Seek Medical Attention. An injured person’s failure to seek medical attention in a prompt or timely manner can exacerbate his injury and reduce his potential for recovery, if it can be proven that a reasonable person would have sought such treatment.
- Voluntarily Declining Surgery. When an injured person’s doctor recommends surgery as the method of treating an injury and the injured person declines, he may not recover damages for the consequences of any injury, including a permanent injury that could have been avoided (or at least lessened) through surgery, if a reasonable person would have done so under similar circumstances.
- Noncompliance With Medical Advice. When a doctor recommends a course of treatment and an injured person disregards the doctor’s advice, he will be unable to claim damages for conditions that arose or were aggravated because of his noncompliance, provided that a reasonable person would have followed the medical advice given.
The duty to mitigate is just one of the many responsibilities born by someone pursuing a personal injury claim.
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One Comment
ALLAN VINTILA
I am involved in a personal injury case , filled in Superior Court . I had a consultation exam with a highly trained neurosurgeon in dec. 2014 . He recommended " no surgery " ( cervical). After 15 months , I had the 2nd surgeon look at same MRI test result and consulted me . He recommended surgery( cervical) .If I will choose not go under surgery -because medical opinion conflicts , would be considered failure to mitigate the damages ?
thank you for your time .
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