The failure to mitigate damages is a defense used by many insurance companies and other at-fault parties to avoid paying compensation in personal injury cases. A failure to mitigate damages could result in a much lower personal injury settlement or jury award. As an injured party, it is crucial that you understand your legal rights and responsibilities regarding injury claims.
What Is My Duty to Mitigate Damages After an Accident or Injury?
Mitigation of damages is a legal theory that requires an injured party to take necessary steps to reduce the amount of damages after an accident or injury. The duty to mitigate requires you to take reasonable steps to limit your damages, even though another person caused the harm.
For example, promptly seeking medical treatment after a car accident is a step to mitigate injuries and damages. Another example of mitigating damages might be completing physical therapy as prescribed by your doctor.
An accident victim is not required to take extraordinary steps to mitigate damages. You are only required to take the steps that a reasonable person of ordinary prudence would take to mitigate damages.
The “reasonable person” standard is decided by the jury. First, jury members determine what a reasonable person would have done given similar circumstances.
The jury members compare your actions to those of a reasonable person. If your actions fall short of what a reasonable person would have done, the jury could find that you failed to mitigate damages.
What Happens If I Fail to Mitigate Damages?
If you failed to mitigate damages, the at-fault party might not be liable for some of your losses.
- Lost wages
- Physical pain and suffering
- Medical bills
- Diminished earning potential
- Permanent disabilities and impairments
- Loss of enjoyment of life
- Out-of-pocket expenses
- Mental anguish and emotional distress
- Decrease in quality of life
- Personal and nursing care
Seeking medical treatment after an injury or accident helps you recover faster and avoid permanent impairments. Therefore, failing to seek medical attention or failing to follow your doctor’s treatment plan could cause your injuries to worsen.
In that case, the at-fault party would not be liable for the damages that could have been avoided had you taken reasonable steps to mitigate the losses.
For example, suppose your doctor prescribed physical therapy after surgery. However, you did not like therapy, so you only went a few times. As a result, you need additional surgery.
The at-fault party has the burden of proving that the failure to complete physical therapy resulted in the second surgery. If they prove their case, the at-fault party would not be liable for loss of income, additional medical bills, or other damages related to the second surgery.
Mitigation of damages is an affirmative defense in a personal injury lawsuit. The defendant must prove that your actions or inactions resulted in additional damages. However, this does not mean you should not take steps to avoid allegations of failure to mitigate damages.
How Can I Avoid Allegations That I Failed to Mitigate Damages?
You cannot prevent a defendant from raising various allegations at trial to avoid liability for damages. However, you can take steps to reduce the chance that the defendant can prove allegations of failure to mitigate damages.
Those steps include:
- Do not state that you were not injured or do not need medical treatment after an accident or personal injury
- Do not refuse medical attention after an injury or accident
- Go to the hospital or see your doctor immediately after an accident or injury
- Follow your doctor’s treatment plan, including physical therapy and other forms of therapy
- If you disagree with your doctor’s diagnosis or treatment plan, promptly seek a second opinion
- Do not return to work or normal activities until your doctor releases you
- Follow all of your doctor’s restrictions for work and activities
- Take your medications as prescribed
- Promptly notify your physician of any new or worsening symptoms
Documenting your efforts to mitigate damages generally means keeping all doctor’s appointments and therapy sessions. Your medical records reflect missed appointments. They also reflect your admissions that you failed to follow your doctor’s medical advice.
A failure to mitigate damages does not mean that you will not receive any compensation for an injury or accident. However, you are responsible for any damages that result from your failure to take reasonable steps to lessen the damages you sustain because of another person’s negligence.
Schedule a Free Consultation With a Las Vegas Personal Injury Lawyer For Questions Regarding Mitigating Damages
Insurance companies use numerous tactics to avoid paying you a fair amount for your personal injury claim. An experienced legal team will be ready to fight for the compensation you deserve. Contact an experienced personal injury attorney in Las Vegas to discuss how you can mitigate your damages and receive the maximum amount in your claim, call us at (702) 570-9000.