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The Plaintiff's Duty to Mitigate Damages

When a person is injured through the negligence of someone else, the injured person often has an obligation to take reasonable steps to minimize the effects and loss related to his or her 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 by showing that the plaintiff failed to take reasonable steps to reduce his or her loss following the injury.

The Injured Plaintiff's Obligation to Reduce Damages

Even a person who suffers personal injury through no fault of his or her own has an obligation to take reasonable steps to avoid further loss, and to minimize the consequences of the injury. The rule of "mitigation of damages" denies a personal injury plaintiff the right to recover that part of his or her damages which the court or a jury finds could reasonably have been avoided. A personal injury plaintiff's obligation is to act in a way that an ordinary, reasonable person would have in a similar situation. Further, an injured person must act in good faith and with due diligence in the exercise of ordinary care and reasonable judgment when selecting a doctor or treatment for his or her injuries and in seeking alternative employment.

Choosing Not to Have Surgery

For example, 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 him or her 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 other treatment. A plaintiff cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery or other treatment, when a reasonable person would have done so under the same circumstances.

The degree to which the proposed surgery involves risk of death or further injury is a factor that is considered when determining if a reasonable person would have undergone surgery to reduce his damages. An injured person may have an obligation to lessen his or her damages by undergoing surgery if the recommended surgery is a relatively simple operation, with a good record of success.

Just because a general anesthesia is required for a particular surgery does not by itself justify an injured person's failure to have the surgery, if the operation involves little risk and is usually successful. 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, he or she may choose to live with the injury and still be compensated for it.

In deciding whether an injured person acted reasonably declining to have surgery or some other treatment that might have lessened his or her damages, it is proper to consider the probability that the treatment would have resulted in a cure or alleviated the injury. The appropriate question is whether the proposed course of treatment would have cured or reduced the injury, not whether there was some chance that it might have done so. 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

An injured person's failure to see a doctor in a prompt or timely manner for injuries that a reasonable person would consider required medical care also can reduce the person's recovery potential. A delay in seeking medical treatment may be reasonable where the injury did not seem serious, for example, where a person thinks that a sore ankle is merely a sprain and treats it accordingly, when, in fact, it is actually a break. Where the nature of the injury is fairly obvious, however, an injured person must act in a reasonably prompt manner, or damages will not be allowed where there is proof that the delay contributed to the injury.

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 if a reasonably prudent person would have followed the medical advice given and the failure to follow the advice resulted in a lack of improvement or aggravation of the injury.

For instance, where an injured person unreasonably refuses to lose weight as advised by his or her treating physician, 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, but the rise of alternative treatments, including acupuncture, chiropractic, holistic and homeopathic remedies, and the use of home remedies are increasingly being used by injured persons. Depending on the nature and severity of an injury, using one of these alternative means, instead of seeking prompt medical treatment, may be unreasonable and may lead to the reduction in the amount of damages an injured person can recover.

Failure to Seek Employment

Finally, a person whose injuries keep him from following his or her usual line of work or trade, but who can work in other areas and types of jobs, cannot sit idly by, doing nothing, and watch his or her losses grow in anticipation of recovering enhanced damages. An injured person's damages will be reduced where he or she can do work of some kind, and where such work is available, but the injured person makes no effort to obtain such work.

For instance, a 24-year-old quadriplegic injured in car crash had his damages significantly reduced where he failed to attempt to obtain employment or to enroll in any college courses. In another instance, a longshoreman had his past and future lost earnings reduced by 20% when he failed to keep a number of job interviews, appeared at some 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.

Have an Attorney Review Your Injury Claim for Free

The duty to mitigate damages is just one of the many responsibilities plaintiffs in injury claims must handle. If you're curious about the strength of your case, you should contact an injury attorney for a free claim evaluation. An attorney will be able to answer any questions you may have and advise you about the nexts steps moving forward.

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