What is the Duty to Mitigate Damages?
For some personal injury claims, insurance companies will argue that the injured plaintiff has a legal obligation to mitigate, or minimize, the harmful effects and economic loss related to the accident. This is called the duty to mitigate damages.
Typically, the insurance company, the opposing party in this scenario, will try to prove that the Plaintiff failed to take reasonable actions that would have minimized his or her damages. They will argue that your claim for financial compensation should be reduced because you didn’t make reasonable efforts to mitigate damages.
For example, the insurance company may claim that you stopped receiving medical treatment against your doctor’s advice. Conversely, the insurance company may argue that you received too much medical treatment.
Proving Failure to Mitigate Damages
There are many ways the opposing party will try to prove that the injured party failed to mitigate damages.
Here are some strategies insurance company lawyers use when building a successful failure to mitigate defense — and how you can take reasonable steps to mitigate your damages following an accident.
Refusing Testing, Treatment, or Surgery
The test or standard for the plaintiff’s duty to mitigate damages is whether a reasonable person would have followed the doctor’s recommendations.
If your doctor recommends diagnostic testing, physical therapy, or surgery after an accident, you have the right to refuse that treatment.
However, your decision to not follow medical advice may make it difficult to recover all the damages you are legally entitled to receive.
Your personal injury attorney cannot make the argument that you did everything possible for your health and well-being after your accident if you chose not to follow your doctor’s advice or you engaged in activities that are likely to worsen your injuries and symptoms.
The insurance company may argue that your injuries would have resolved sooner or your symptoms would have been less severe if you had done what your doctor instructed you to do.
Failing to Seek Medical Care Right Away
In many personal injury cases, the injured party may not seek medical care immediately. The injured party might not experience any signs of injuries right away.
But when the signs do arise, plaintiffs receive treatment for an injury and then decide to file a personal injury claim. The insurance company’s legal team will use that against plaintiffs and cast doubt on the severity of a plaintiff’s injuries to reduce damages awarded.
That’s why we encourage anyone who’s been injured in an accident to seek medical care as soon as they can.
Failing to Follow Medical Care Recommendations
If your doctor recommends that you rest during your recovery, but you decide that you can’t— for any reason—the insurance company could argue that your decision impeded your recovery.
Similarly, the insurance company may argue that you prolonged your injuries if you return to work against medical advice and suffer an aggravation of your injuries.
If you fail to get recommended physical therapy or fail to take certain medications, you may be subject to the other side arguing you didn’t take steps to mitigate damages.
Failing to Seek Employment
If you intend to make a claim for lost earnings or wages, the law requires you to return to work or seek employment when your doctor determines that you are physically capable of performing the essential duties of your job or career.
Likewise, if you have lost your job or had to pause your search for a new job when you were injured, you have a duty to mitigate your wage loss. The defense may argue that you were capable of doing another job even if you were not able to return to the same job that you had at the time of the accident because of your injuries.
Claimants must be able to show their efforts to secure a new job by providing copies of applications, emails, resumes, and any other available documentation that demonstrates their efforts to mitigate their damages. This can be challenging to document.
If you are physically able to work and claim damages for lost earnings, the defendant may argue that your damages could have been reduced if you had returned to work, gotten a different job, or received training for a different career. If you are unable to work and will be claiming lost earnings, this must be documented by your doctors.
It is very important to have discussions about your ability to work during each visit with your doctor starting with the first office visit after the accident.
Contact the Personal Injury Lawyers at GB Law
There are many reasons injury victims may wish to seek alternative solutions to their injuries. For example, some religious beliefs may limit the type of medical treatment a person may receive after a traumatic event.
Having the advice of a lawyer can help you navigate these situations to preserve the best possible outcome. If you have questions about your duties to mitigate damages, and when this may apply, talk to the Columbus personal injury lawyers at GB Law by calling us at 614-222-4444.
