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The Plaintiff’s Duty to Mitigate Damages in a Personal Injury Case

The Plaintiff’s Duty to Mitigate Damages in a Personal Injury CaseGenerally speaking, a person who suffers injuries because of someone else’s wrongful decisions or actions has a legal right to seek compensation from that wrongdoer through a personal injury lawsuit. In that lawsuit, the person injured is the plaintiff, and the person the plaintiff sues is called the defendant.

The amount of money the plaintiff seeks to recover from the defendant in a personal injury suit depends in large part on the type and severity of the plaintiff’s injuries. The worse the injuries and the greater their impact on the plaintiff’s life, the higher the amount of damages the plaintiff can usually seek.

To prevail in a personal injury case, the plaintiff’s lawyer must prove that the defendant caused the plaintiff’s injuries, and that the amount of money the plaintiff seeks represents reasonable compensation for them. In making that case, the plaintiff’s lawyer often also must show that the plaintiff took reasonable steps to mitigate damages.

What does that mean? Let’s find out.

What Is Duty to Mitigate Damages?

In simple terms, mitigating damages means taking reasonable steps to prevent the harm you suffered from getting worse. You have the duty to mitigate damages because it would not be fair to ask the defendant in a personal injury case to pay for additional harm you caused to yourself or could easily have avoided.

What constitutes mitigation of damages?

It depends on the circumstances of your personal injury case, but some common examples include:

  • Seeking immediate medical attention after getting injured;
  • Following the medical treatment plan established by your doctor, such as by taking medicine, going to physical therapy, or avoiding certain activities that could make your injury worse;
  • Consenting to surgery that is necessary for treating your injury;
  • Seeking treatment or support for new, secondary health complications that emerge because of your injuries;
  • Agreeing to modified work conditions to keep working while you heal from your injury; or
  • Continuing to pay your health insurance premiums, if you have the means to do so, so that you do not have to pay inflated medical costs out-of-pocket.

In other words, the duty to mitigate your damages in a personal injury case generally requires you not to do anything that could reasonably be expected to make your physical, emotional, or financial injuries worse.

Failure to Mitigate Damages

Failing to mitigate damages can have costly consequences.

By law, a plaintiff in a personal injury case who fails to mitigate damages cannot recover compensation for the extra harm the plaintiff could have avoided, but didn’t. Or, to put it another way, a failure to mitigate damages reduces the amount of money you have the legal right to seek in a personal injury case.

For example, suppose a plaintiff suffers an injury that results in $100,000 in medical costs. Normally, the plaintiff would have the right to seek payment for the full $100,000 in a personal injury lawsuit. However, if the medical costs would have only amounted to $40,000 if the plaintiff had taken reasonable steps to prevent the injuries from getting worse, then the plaintiff can only seek $40,000 as compensation, and may need to find some other way to pay for the remaining $60,000.

But that’s not all. As a practical matter, the failure to mitigate damages could sink a plaintiff’s entire case. Judges and juries do not sympathize with someone who does not take reasonable steps to avoid harm. The fact that a plaintiff failed to mitigate may lead them to decide not to award the plaintiff any damages, or to reduce the amount of damages the plaintiff might otherwise have the right to receive, simply because the plaintiff appeared not to take an injury seriously.

How to Mitigate Damages

Joseph Benson Blog
Personal Injury Lawyer, Joseph Benson

Every personal injury differs, and so do the steps you may need to take to mitigate the damages you have suffered.

As a general matter, however, following the tips below can keep you on the right side of your duty to mitigate damages after suffering a personal injury.

  • Always seek medical attention. If you know you are injured, then you must seek care from a hospital or doctor as soon as possible. Failing to do so could result in your losing the ability to seek damages for your injuries from the parties at fault. Even if you do not think you suffered an injury, it’s better to be safe than sorry. By seeking medical attention as soon as possible after any accident or incident in which you might have suffered an injury, you ensure that no one can claim your failure to take care of yourself resulted in injuries getting worse.
  • Try to maintain employment, even if it means a change in your current job responsibilities. An injury might keep you out of work entirely, and if so, that’s okay. However, if you have the reasonable ability to work, then you can protect yourself against a claim that you failed to mitigate damages by continuing to work to the best of your abilities. Speak with an experienced personal injury lawyer if your injuries have a significant impact on your ability to work in your field.
  • Don’t refuse reasonable medical treatment. In every situation in which a doctor or medical professional suggests a reasonable course of treatment, you should attempt to follow that suggestion. Failing to do so could be misconstrued as a failure to mitigate your damages.
  • Don’t refuse a recommended surgery, if it is the only reasonable treatment option. Harm that results from your refusal to undergo a surgery that represents your only reasonable treatment option may fall on your shoulders. Speak with an experienced personal injury lawyer if you have questions about what constitutes a reasonable surgery alternative.
  • Be careful of alternative medical treatments. Holistic medicine, acupuncture, or even chiropractic care, can help to resolve medical issues. However, if you seek these treatments despite sound medical advice, you may face accusations that you failed to mitigate your damages. Speak with an experienced personal injury attorney to learn more.

You have potentially valuable legal rights to compensation if someone else’s wrongful actions caused you harm. However, you also have a responsibility not to make that harm worse.

For answers to your questions about mitigating your damages, so you can recover the maximum amount of damages allowed under the law, contact an experienced personal injury lawyer today.

Benson and Bingham