Mitigation of Damages

Following a personal injury accident, a plaintiff has a duty to mitigate the plaintiff’s damages.   Under the mitigation of damages doctrine, the plaintiff is responsible for preventing an injury from becoming worse due to a delay in treatment. In addition, the plaintiff must not incur additional expenses because of other harmful activity or unnecessary medical treatment.  The plaintiff must in short do his best to minimize the damages following an accident. Failure mitigate damages can adversely affect an injured person’s recovery.  

Failure to mitigate can arise in a number of ways.  The most common situation is where the defendant claims excessive or unnecessary treatment.  The plaintiff has a duty to avoid unnecessary expenses and losses. This is the essence of the duty to mitigate.  If the plaintiff seeks unusual or unnecessary treatment for his or her injuries following an accident, the defendant may not be liable to the plaintiff for that treatment. For example, if the treatment sought is not a medically recognized form of treatment, the plaintiff may be unable to recover these medical expenses.  In addition, the plaintiff cannot seek unnecessary and excessive treatment. This most often occurs with such treatment as chiropractic care, massage therapy, and other forms of rehabilitative care.  

The plaintiff must mitigate more than physical injuries and medical care.  The plaintiff most also avoid unnecessary loss of income.  This arises with surprising frequency where a doctor deems it safe for the plaintiff to return to work but the plaintiff (rightly or wrongly) disputes the medical conclusion and refuses to return to work.  This can result in a battle of medical experts which can be very costly.  As such, these disputes should not be entered lightly. 

Less common, there may be a failure to mitigate damages due to a delay in treatment.   For example, if the condition worsens before the injured party seeks treatment, the defendant may argue a failure to mitigate damages where additional harm or injuries resulted from the delay in treatment.   This is a little harder for defendants to argue.  It is far more common that they argue excessive treatment. 

Though medical expenses and lost wages are the most common subjects of mitigation, there are a number of other areas of damages that must be mitigated.   If the court finds that the plaintiff did not mitigate damages, the court can reduce the plaintiff‘s award of damages according to the unnecessary expenses or losses incurred by the plaintiff.   Each case is dependent upon the circumstances. Some mitigation issues are clear.  Others may require the guidance of an experienced personal injury attorney

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