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When dealing with a personal injury lawsuit, your attorney will likely tell you right off the bat “you should 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, then you would receive compensation for the damages. 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 recieve.
How? By arguing you failed to “mitigate damages.
Mitigation is the act of lessening the impact of your injuries and the costs of an accident. When you’re injured through someone else’s negligence — they ran 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 these steps to reduce losses following the injury.
The rule of “mitigation of damages” denies a personal injury plaintiff rights to recover parts of his or her 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 the 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. It doesn’t mean you would be expected to fly to 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 person admits causing harm with an added excuse, justification, or explanation. In the case of mitigation, he or she could admit they caused an accident, but then limit legal obligations by arguing the plaintiff failed to mitigate.
If you were hurt when they hit you, in court they could point out every way that you allowed your injuries to get worse or the lack of care you took towards improving your condition. They can use this defense to limit the amount of money they’re required to pay you after an accident. This means that it is crucial that you do everything you can to reduce or eliminate damages.
You know the answer to “what is mitigation?” Here are examples of how a plaintiff could be accused of failure 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 his damages reduced after evidence appeared that he failed to seek out new work, attended interviews in inappropriate clothing, or turned down employment at a job that provided wages equal to what he earned at his prior employer.
When fighting for damages, it’s crucial that you seek medical attention in a timely manner. Failure to do so can lead to a reduction in the damages you’re able to claim. 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 reduces the amount you’re able to claim in court. Even if your injuries don’t seem significant, it’s important to seek medical attention if only to strengthen your claim with a professional analysis of any and all 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 the medical advice, and that your failure to follow the advice led to a lack of improvement or worsening of the injury. For example, if you hurt your shoulder and fail to participate in therapies 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 undergoes surgery to treat an injury. Legally, the plaintiff is not obliged to have the surgery and no one can force him or her 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.
A plaintiff cannot claim damages for a permanent injury if the injury could have been bettered with a surgery that a reasonable person would have participated in. The court will consider whether 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 lawyers and support staff will work with you 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.
US Legal, Inc. “Mitigation Law and Legal Definition.” Mitigation Law and Legal Definition | USLegal, Inc., definitions.uslegal.com/m/mitigation/.
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