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Do Personal Injury Victims Have a Duty to Mitigate Their Damages?

sitting on couch with cast on legThe party that caused your injury owed you a duty of care, but victims may not realize they also have a duty to mitigate their damages. In other words, you have a duty to take reasonable action to manage your damages, such as by going to the doctor and following his or her treatment recommendations.

Below, we discuss the duty to mitigate damages and how the insurance company/at-fault party may try to use this as a defense against your claim. Failing to mitigate damages could affect the value of your claim, as it could be argued your damages would not be as significant if you had taken steps to mitigate them.

If you have questions about legal options after suffering a personal injury, give us a call today to schedule a free legal consultation. Our firm does not charge upfront fees, so there is no financial risk in contacting us or hiring us to manage your case. Visit our client testimonials page to learn what our clients have to say about working with our attorneys.

What Does it Mean to Mitigate Damages?

The purpose of filing an injury claim is to recover compensation for damages suffered in an accident. For example, injured victims often have medical expenses because they have injuries that need treatment. They may also have lost wages, pain and suffering, property damage and other types of damages.

Refusing Recommended Treatment

While it is up to the injury victim to decide what treatment they get, refusing necessary treatment could hurt the value of your claim. Injury victims have a duty to take reasonable steps to mitigate their damages, which means getting recommended treatment. If a procedure would improve your condition and it is recommended by doctors, not getting it could be seen as failing to mitigate damages.

If you do not want to get surgery because you think it is too risky, your refusal could be used against you. You should try to get a second opinion or get alternative treatment that doctors say would help. That would make it more difficult for the insurance company to assert a failure to mitigate damages defense.

Not Getting Unnecessary or Overly Expensive Treatment

Mitigating damages also means not taking unnecessary steps to rack up medical bills and other expenses. For example, getting unnecessary or overly expensive treatment could be seen as a failure to mitigate damages. If doctors are not recommending surgery, it could be considered unreasonable to get it.

Seeking Treatment Soon After an Accident

One way to think about mitigating damages is taking reasonable steps to avoid further losses. For example, it is reasonable to expect victims to seek treatment relatively soon after an accident. It is reasonable to expect you to not engage in physical activity that your doctor asked you to avoid.

How Failing to Mitigate Damages Could Hurt Your Claim

The problem with failing to mitigate damages is the insurance company could refuse to provide compensation for worsening of your injury that is directly linked to your failure to obtain treatment. If you missed work after your doctor said you could return, and you do not have a good reason, you would not be able to claim lost wages for those times you missed work.

You may not be able to work in the same job as before the injury. You may need to work in a different industry or work fewer hours. If you refuse to seek out alternative employment, you may not be able to seek compensation for the full cost of your lost earning capacity.

Proving a Failure to Mitigate Damages

There can be room for interpretation of failing to mitigate damages. It depends on the details of the claim and the actions the victim took after the accident and during medical treatment. The insurance company would need to prove you refused treatment or obtained treatment that was not needed.

If the case makes it to court, it may be up to a jury to decide if the victim took reasonable action to deal with his or her injuries and mitigate damages.

Your medical records and possibly testimony from your doctors may be used by the insurance company to prove failure to mitigate. The insurance company may also request an independent medical exam to determine if you received treatment that you needed to mitigate your damages.

Countering a Failure to Mitigate Defense

If the insurance company asserts this defense, you need an experienced attorney to defend your claim. If you had a disagreement with the first doctor you saw but you got another opinion from another doctor, your Harrisburg vehicle crash lawyer may be able to use that to defend your claim. Your lawyer can also help you gather proof that you have tried to seek alternative employment.

If you waited to seek medical treatment you may have had a good reason for it. Your lawyer can help you document that.

Even if you made some mistakes that cost you compensation, your lawyer may be able to help lessen the damage to your claim. Insurance companies tend to exaggerate mistakes make by injured victims.

Unsure About What to Do After an Accident? Call Today

Schmidt Kramer’s licensed attorneys have been helping injured victims pursue compensation for more than 30 years. We have secured millions on behalf of our clients and are ready to help you evaluate your legal options.

We have extensive knowledge of the law and have obtained compensation from many insurance companies. We are aware of the tactics they use to underpay claims and how to fight back. Our goal is to secure the compensation you need to move forward.

Give us a call today. We are here to help: (717) 510-1770.