For some personal injury claims, an argument can be made by the insurance company that the injured plaintiff has a legal obligation to minimize the harmful effects and economic loss related to their accident. This is called the Duty to Mitigate. Typically, the opposing party is trying to argue that your claim for financial compensation should be reduced because you didn’t do what was best for yourself. 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. For example:
Refusing Testing, Treatment, or Surgery
: 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. 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. The test or standard for the Duty to Mitigate is whether a reasonable person would have followed the doctor’s recommendations. Your 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 engage in activities that are likely to worsen your injuries and symptoms.
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 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. 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 your efforts. 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 staring with the first office visit after the accident.
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 claimants navigate these situations to preserve their 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 GBM Law by calling us at 614-222-4444.