Mitigate Damages

As an injured party, you have a duty to try to limit the damages or harm you suffer because of another party’s negligent actions. When you fail to mitigate damages, the other party can raise the failure as a defense to liability for damages.

You are not expected to prevent all damages from an accident or injury. However, you have a duty to take reasonable steps to avoid causing the severity of the harm or damages to increase.

Reasonable steps a person can take to mitigate damages in a personal injury case include, but are not limited to:

• Seeking prompt medical treatment for injuries to speed healing and avoid complications that could result in additional damages.
• Following the physician’s treatment plan, including staying out of work for the duration prescribed by the doctor.
• Attending physical therapy sessions and making a good faith effort to complete the prescribed therapy.
• Reporting new or worsening systems to your physician immediately.
• Promptly seeking a second medical opinion when disagreeing with your doctor’s prognosis or treatment plan.
• Returning to work when your physician clears you to work, including returning to modified duty.

You might be required to take additional steps depending on the circumstances of your personal injury case. An experienced Fort Walton Beach personal injury lawyer can provide further guidance and help you fight claims of failure to mitigate damages.

An insurance company often uses allegations of failure to mitigate damages to undervalue personal injury claims. The insurance adjuster might raise this issue during settlement negotiations or as a threat, especially if you are not represented by an attorney.

If you file a personal injury lawsuit, the jurors determine whether you breached the duty to mitigate damages. In most cases, they base their decision on what a “reasonable person” would have done under the same circumstances. A “reasonable person” is an arbitrary standard the jurors determine based on what they believe a person of ordinary concern and prudence would have done in your situation.

Factors jurors might consider when deciding whether you failed to mitigate damages include:

• The date you discovered you had a duty to mitigate damages
• How promptly you sought medical treatment for your injuries
• The opportunities you had to mitigate damages and any failure to utilize those opportunities
• How effective your attempts to mitigate damages were in your case
• The time between being injured and taking steps to mitigate damages

It is always in a person’s best interest to seek immediate medical treatment after an accident or other personal injury. Medical records are essential pieces of evidence in a personal injury case. You need medical evidence to link your injury to the other party’s actions or failure to act.

Delays in medical treatment might work against you unless you have a valid reason for not seeing a doctor promptly after an injury or accident.

You can still recover money for your injuries and damages, even though you failed to mitigate damages. The non-economic and economic damages a person might recover for a personal injury claim include:

• Reimbursement for the cost of past and future medical treatment and nursing care
• Loss of enjoyment of life and quality of life
• Reimbursement for out-of-pocket expenses, personal care, and help with household chores
• Pain and suffering caused by physical injuries
• Reimbursement for the loss of income, including benefits, future lost wages, and a decrease in your earning capacity
• Emotional distress
• Permanent impairment, disability, scarring, and disfigurement
• Mental anguish and trauma

The at-fault party might claim that the amount of your damages increased because you failed to take reasonable steps to mitigate harm.

For example, you refused to have surgery recommended by your doctor for a broken leg. After the fracture healed, you cannot stand for long periods. Therefore, you cannot return to a full work schedule.

The defense might offer expert testimony to argue that you would have fully recovered if you had the surgery. Therefore, you would not have lost as much in wages and future earning potential.

When the other party proves that you failed to mitigate damages, the party is not legally liable for the damages you incurred because of your actions. However, that does not mean you must always follow a doctor’s advice. Your attorney may argue that you sought a second opinion and acted on that opinion, similar to what a reasonable person would have done.

If you have any questions about mitigating damages, it is best to seek legal advice as soon as possible to avoid problems with your case in the future.