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When a person is injured through the negligence of someone else, the injured person has an obligation to take reasonable steps to minimize the effects and losses related to his or her injuries. This obligation, legally referred to as "mitigation of damages," includes seeking appropriate medical care to get well, and to seek other employment and/or retraining if your usual work is no longer feasible due a work-related injury. If you have been injured, contact a San Diego accident injury attorney at the law offices of Samuel Spital and Associates. We are experienced personal injury lawyers and stand ready to help you. We can help fight the claim that your compensation should be reducing by offering evidence that you took reasonable and appropriate steps to reduce your losses following the injury.
You Do Have an Obligation to Minimize Consequences
As a personal injury victim, you have an obligation to take reasonable steps to avoid further loss or to minimize the consequences of the injury. The requirement of "mitigation of damages" denies a personal injury plaintiff the right to recover that part of his or her damages that the court or jury finds could reasonably have been avoided. You must act in a way that an ordinary, reasonable person would in a similar situation. In other words, you must act in good faith, with due diligence and use reasonable judgment to select a doctor and get treatment for your injuries. If your injuries were the result of a work-related injury that prevents you from returning to your old position, you must show evidence that you are seeking alternative employment or at least pursuing other opportunities (such as taking additional training or returning to school to learn a new career).
Only You Can Decide if Proposed Treatment is Worth the Risk
Sometimes an injured person's doctor will recommend surgery or another drastic measure as a method of treating an injury. In such a case, an injured person may choose not to have the surgery; no one can make him or her consent to it. Remember that you are ultimately in charge of your own health care. Keep in mind, though, that you do run the risk of losing the right to recover damages for health conditions that could have been avoided or significantly lessened if you had undergone the surgery. Furthermore, a plaintiff cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery provided a reasonable person would have chosen surgery under the same circumstances.
If a proposed surgery involves the risk of death or further injury, the court may decide that you sufficiently acted to mitigate your damages even if you opted out of it.. The court uses a "reasonable person" standard in this circumstance: would a reasonable person, if presented with the facts of your case, have decided that the benefits outweighed the risks and proceeded with the surgery? If so, then it is possible that your damage award could be reduced if you refuse to have it.
The mere fact that general anesthesia itself runs a risk does not, standing alone, justify an injured person's failure to have the surgery, provided the operation involves little additional risk and is usually successful; the court may consider the failure to have surgery under these conditions unreasonable. An injured person is not required to undergo surgery that in and of itself involves hazard or poses serious risks for complications. Likewise, an injured person is not required to undergo a major or serious surgical operation regardless of its proposed benefits. Given that choice, the victim may decide to just live with the consequences of injury and still be compensated for resulting health problems.
In deciding whether an injured person acted reasonably in declining to have surgery (or some other treatment that might have lessened his or her damages) the judge will likely consider the probability that the treatment would have resulted in a cure or alleviated the injury. The appropriate question is whether the proposed course of treatment would have likely cured or reduced the injury, not whether there was a slim chance that it might have helped. In cases where an injured person makes a claim for lost future earnings, a court can consider whether the proposed surgery would likely help the injured person regain his or her ability to reenter the workforce.
Did You Seek Timely Treatment and Follow Recommendations?
An injured person's failure to see a doctor in a prompt or timely manner for injuries where a reasonable person would have done so can dramatically reduce the person's recovery potential. A delay in seeking medical treatment may be reasonable where the injury did not seem serious or did not manifest itself quickly. An injured person must act in a reasonably prompt manner; if there is proof that the delay contributed to the injury (or the extent of the consequences), damages may not be allowed.
An injured person's damages will be reduced if a reasonably prudent person would have followed the medical advice given and the failure to follow the advice resulted in a lack of improvement or aggravation of the injury. For instance, an injured person's failure to return to a doctor or other medical care provider for a continuing condition, especially where persistent pain is involved, may reduce his or her recovery. Likewise, a failure to take prescribed medication which would have likely improved the condition could also result in a reduction or total disallowance of a damage award.
Did You Seek Alternatives to Traditional Medicine?
Alternative treatments like acupuncture, chiropractic care, holistic medicine, homeopathic remedies and massage or exercise are being increasingly used by injured persons in lieu of traditional medical treatment. While one of these alternative methods may actually bring relief, if aninjured person fails to seek prompt treatment from a licensed medical professional you run the risk of having your choices be deemed unreasonable under the circumstances. That determination may lead to a reduction in the amount of damages recoverable.
If the lasting effects of an injury prevent a return to the victim's previous occupation or duties, the person may still be eligible for a different career. If you have been medically cleared to return to the workforce and sit by, doing nothing, to increase the damages you seek, you will likely be found to be acting unreasonably. Your award will actually decrease as a result. Typically an injured person's damages will be reduced where he or she can do work of some kind but the injured person makes no effort to obtain such work.
Not Sure What You Need to Do? Contact Us For Answers
When there are steps that an injured person could take to reduce his or her losses, he or she has a duty to take reasonable measures to mitigate damages. Samuel Spital and Associates will assign an experienced personal injury attorney to guide you and monitor your case. We will explore and gather evidence, help you seek medical care and assist you in taking reasonable and appropriate steps to heal and to mitigate your damages at the same time.