When dealing with a personal injury lawsuit, your attorney will likely advise you to "mitigate any further injury.” But, what is mitigation? How does one mitigate injury? Why is mitigating injury an important process in a personal injury lawsuit?
It seems reasonable that if you’re hurt in an accident that is not your fault, you would later receive compensation for the damages incurred. While this can be true, it’s not always the case. Insurance companies will fight you along the way, and the person liable for your injuries can limit the money you receive.
How can they limit compensation for your injuries? By arguing you failed to “mitigate” damages.
Mitigation is the act of lessening the impact of injuries and the costs of an accident.
When you’re injured through someone else’s negligence — they run a stop sign and hit you, you slip outside of an owner’s business, etc. — you’re obliged to take reasonable steps to minimize, or mitigate, damages.
Defendants in personal injury cases will try to diminish the damages you can recover by claiming you failed to take proper steps to reduce losses following the injury.
The rule of “mitigation of damages” denies a personal injury plaintiff’s rights to recover parts of their damages that the court claims could have been reasonably avoided.
As a plaintiff, you’re obliged to act in a way that a reasonable person would in the same situation. This requires responding to the injury with a proper course of action — seeking medical care, looking for new employment if necessary, and working with legal and medical professionals.
In general, mitigating injuries means you:
The duty to mitigate damages means you must do what you can to keep damages physically, legally, and financially within reason.
For example, if you hurt your elbow, you would be reasonably expected to seek treatment from a local, board-certified doctor shortly after your injury, if recommended by your physician. Mitigation doesn’t mean you would be expected to seek care from the world’s best doctors; you are not permitted to let damages pile up excessively.
The failure to mitigate is an affirmative defense. An affirmative defense is used in court when a defendant admits to causing harm with an added excuse, justification, or explanation.
In the case of mitigation, the defendant could admit they caused an accident, but then limit legal obligations by arguing that the plaintiff failed to mitigate damages.
For example: if you were injured in a car accident that was another party's fault, they could point out in court every instance that you allowed your injuries to get worse, or point out the lack of care you took in improving your condition.
The party at fault can use this defense to limit the amount of money they’re required to pay after an accident. This means that it is crucial that you do everything possible to reduce or eliminate damages.
Below are ways that a defendant's legal team could argue that a plaintiff didn't take the proper steps of mitigation:
If you’re injured in an accident, it’s possible you’re unable to return to your current job. In the case of personal injury lawsuits, this does not mean you can stay unemployed.
The duty to mitigate damages requires that you seek gainful employment to the best of your ability. Your damages will be reduced if there is evidence that you made no or little effort to find work when work is available.
For example, a construction worker could have their damages reduced after evidence appears that they failed to seek out new work, attended interviews in an inappropriate manner, or turned down employment at a job that provided wages equal to what they earned at their prior employer.
If you break your ankle and don’t seek treatment, it’s likely that the injury will worsen. This not only increases the severity of injuries and costs of treatment, but also reduces the monetary amount you’re able to claim in court. Even if your injuries don’t seem significant, it’s important to seek medical attention to strengthen your claim with a professional medical analysis of injuries.
In the case of mitigation, you cannot refuse treatment or ignore medical professional advice and then claim damages for the condition worsening or persisting.
Your damages will be reduced in court if it is proven that a reasonable person would have followed professional medical advice, and that your failure to follow medical advice resulted in a lack of health improvement or worsening of the injury.
For example, if you hurt your shoulder and fail to participate in therapies or routines recommended by physicians, it’s likely your damages will be reduced. As a plaintiff, you’re obliged to follow medical advice and take the recommended steps to improve your condition.
Some severe cases will require the plaintiff to undergo surgery to treat an injury. Legally, the plaintiff is not obliged to have a surgery and no one can force them to do so. But, if you’re injured and a doctor recommends the surgery, forgoing the operation could result in a reduction of damages claimed and compensation afforded.
A plaintiff cannot claim damages for a permanent injury if the injury could have been improved with a surgery that a reasonable person would have participated in. The court will consider whether the proposed treatment would have cured or reduced the injury, and they will also consider if it would likely help the plaintiff to return to work.
An injured person is not obliged to have surgery that would be considered more than routine, involves serious risks, or could be dangerous.
Not taking the proper steps to mitigate damages could drastically affect the outcome of your personal injury claim. At TorHoerman Law, our experienced team of attorneys and support staff will work to help you properly mitigate your injuries and provide proper risk assessment.
We are happy to discuss your potential case for free and with no obligation. Contact us today to learn more about mitigating your injuries and properly handling your personal injury claim.
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