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Mitigation: Why Would I Want to Minimize My Damages?

A plaintiff must take reasonable steps to limit damages.To someone pursuing a personal injury case to recover damages from an automobile accident, it might seem strange to learn that they should take steps to reduce the effects related to their injury. After all, isn’t the idea to maximize one’s losses to recover the highest amount of damages possible?

Maybe, but according to the mitigation of damages rule, every plaintiff who suffers personal injury through no fault of his own has an obligation to take reasonable steps to avoid further loss and to minimize the consequences of the injury.

The Injured Plaintiff’s Duty to Mitigate

The rule of mitigation of damages denies a personal injury plaintiff the right to recover any part of his damages which a court or jury finds could have been reasonably avoided if the plaintiff had acted in a way that an ordinary, reasonable person would have acted in a similar situation. An injured person must also act in good faith and with due diligence regarding the selection of a health care provider or treatment for his injuries.

Some examples of failure to mitigate damages include:

  • Failure to Seek Medical Attention-An injured person’s failure to seek medical attention in a prompt or timely manner can reduce his potential for recovery, if it is found that a reasonable person would have sought such treatment. A delay in seeking medical treatment may be reasonable if the injury does not seem serious or is not immediately apparent, but when the nature of the injury is obvious, an injured person is expected to get treatment in a reasonably prompt manner or damages may not be allowed if it is proven that the delay exacerbated the injury.
  • Choosing Not to Have Recommended Surgery-When an injured person’s doctor recommends surgery as a method of treating an injury and the injured person declines, there is no way to make him consent to the procedure. But he may not recover damages for the consequences of any injury that could have been avoided (or at least lessened) through surgery or other treatment. Similarly, he will not be able to recover damages for a permanent injury that could have been avoided by consenting to a surgery, if a reasonable person would have done so under similar circumstances.
  • Noncompliance With Medical Advice-When a doctor or medical provider recommends a course of treatment and an injured person refuses the treatment or otherwise disregards the doctor’s advice, he will likely be unable to claim damages for conditions that arose or endured because -of his failure to follow the advice. This noncompliance will likely reduce the plaintiff’s potential for recovery, especially if his failure to follow the advice resulted in a lack of improvement or aggravation of the injury.
  • Alternative Treatment Options-If an injured person decides to use alternative treatments such as acupuncture, chiropractic care, or holistic and homeopathic remedies instead of seeking more mainstream medical treatment for his injuries, this choice might seem unreasonable to a court or jury and may lead to a reduction in the amount of damages that the injury victim can recover.

Seeking Legal Advice

The duty to mitigate is just one of the responsibilities someone pursuing an injury claim will have, which is why seeking legal advice from an experienced personal injury attorney is a decision that a reasonable and prudent person would likely make.

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My daughter and I first consulted with Dan Rosen after a very serious auto accident. Dan had several phone conferences with me, and Tracie was available whenever I called. We would recommend personal injury attorney Dan Rosen to anyone!
Sally from Denver, Colorado

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