Obligation of Personal Injury Plaintiff to Reduce Damages
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.
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