Mitigation of damages is a common concept in personal injury law. You cannot claim damages from a defendant if they were “reasonably avoidable.” Even if the defendant’s negligence injured you, you cannot simply sit back and allow your damages to pile up and then demand compensation for damages you could have avoided.
What is a Failure to Mitigate Damages?
To win a personal injury claim, you must prove the defendant’s liability by a preponderance of the evidence. A preponderance of the evidence is enough evidence to establish that the defendant’s misconduct “more likely than not” caused your injury. Even a 51% chance is enough to win.
Failure to mitigate damages is an affirmative defense under Florida law. In an affirmative defense, the defendant must be the party who makes the claim that you failed to mitigate your damages. The defendant must also prove your failure to mitigate damages using the same “preponderance of the evidence” standard described above.
Examples of Failure to Mitigate Damages
There are many ways that you can fail to mitigate your damages. Any action that you take or refuse to take that unreasonably increases your losses constitutes a failure to mitigate your damages. Here are some examples.
Failure to Seek Timely Medical Treatment
Seek medical treatment immediately after an accident, even if you don’t believe you were seriously injured. If you suffered an injury but delayed seeking medical treatment, your injuries could worsen. A court might consider any worsening of your condition to be your own fault. Even if a court compensates you for your original injury, it might not compensate you for the worsening of your injury.
The one excuse that a court may accept for delaying medical treatment is that you did not realize you were injured. Some common car accident injuries such as whiplash and TBI might not produce symptoms until hours or even days after the accident. If your delay in seeking medical treatment was reasonable, you may still qualify for compensation.
Failure to Seek Suitable Employment
Some injured victims are disabled and cannot return to the jobs they held before their accident. Unless they are totally disabled, Florida courts usually expect such people to seek whatever employment they still qualify for.
If this situation describes you, you can’t just sit at home doing nothing all day while your losses pile up, waiting for a large settlement or verdict. You must actively seek employment to the extent that your injuries permit or seek suitable job training (if appropriate). If you don’t, a court or an insurance company may deny you the portion of your losses that you could have avoided by seeking work or pursuing job training.
Refusal to Consent to Surgery
Your doctor might recommend surgery to heal an injury. In some cases, refusing surgery might constitute a failure to mitigate damages. This is not always the case, however. For example, if your doctor recommended high-risk surgery, you might be reasonable to refuse it. Simply being afraid to submit to surgery is no excuse for refusing it, and neither is the necessity of putting you under general anesthesia.
Failure to Follow Your Doctor’s Recommendations
A court can reduce your damages for failure to heed medical advice. If your doctor tells you to take a certain medication, take it. Your doctor might even require you to lose weight to improve your condition. Keep a record of your activities and purchases to prove that you strictly followed your doctor’s recommendations. This advice is not limited to medical malpractice claims – it applies to any personal injury case.
Use of Alternative Medical Treatments
The use of alternative medicine instead of physician-recommended treatments might qualify as failure to mitigate your damages if it was not reasonable. Particular “alternative” medical treatments such as chiropractic services and acupuncture have gained a certain amount of legitimacy over the years. A court may or may not consider such treatments “reasonable.” Other treatments, such as homeopathy, might face immediate rejection.
Contact a Personal Injury Lawyer for Help Fighting Allegations of Failure to Mitigate Damages
When it comes to a personal injury claim, it’s not just whether you win or lose; it’s how much you win and whether the amount recovered puts you back on your feet. The defendant will almost certainly accuse you of failing to mitigate your damages to reduce their liability. You can then accept a wholly inadequate settlement and call it “victory,” of course. A skilled personal injury lawyer might be able to win much, much more than you could win on your own.
You don’t need to worry that you cannot afford a lawyer because most personal injury lawyers take their fee as a percentage of the amount you win under a contingency fee agreement. Therefore, it’s best to consult a lawyer to ensure that you recover the maximum amount for your claim. A lawyer will also fight back against allegations of failure to mitigate damages.