What Does it Mean to “Mitigate Your Damages” in a Personal Injury Claim?

Learn why you must mitigate your damages after an injury. Don’t let the insurance company cut your compensation for failure to limit your losses.

The injured party in an insurance claim or lawsuit has a legal obligation to mitigate their damages. Mitigation means doing what you can to lessen the impact of your injuries and expenses.

No matter what type of accident you’re in or the injuries you sustain, you must make a reasonable effort to minimize the negative consequences.

If the insurance company (or the defendant’s attorney in a lawsuit) can prove you failed to limit your losses after an injury, your compensation can be reduced accordingly.

Here we explain how mitigation works and what you can do to validate your damages after an accident.

How Mitigation Works in Injury Cases

Mitigation of damages applies to breach of contract cases, real estate disputes, contract law, and personal injury cases. Also called the doctrine of avoidable consequences, mitigation of damages rules work to reduce a claimant’s final compensation if some of the claimed expenses could have been avoided.

In personal injury cases, this means you have to follow your doctor’s medical advice and return to your job when you’ve recovered, so you don’t rack up extra costs.

Insurers will examine your actions or inactions after an accident. They want to find out if you did everything you could to prevent further injuries or expenses after the incident.

If the insurer finds evidence that you failed to mitigate your costs, they’ll use that information against you during settlement negotiations or before a jury.

Example: Failure to Mitigate Damages in a Slip and Fall Case

Jennifer hurt her ankle after a slip and fall at the local amusement park. She immediately went to the emergency room, where they x-rayed her ankle. The physician and radiologist were unable to determine if her ankle was fractured because of the swelling. They advised her to stay off her feet and see her doctor in two days for another exam and x-rays.

The next morning, her ankle felt better and was not quite as swollen. Jennifer had previously made plans to go to the gym with her friends. Since she felt better, she didn’t cancel her plans.

During her kickboxing class, she felt a snap in her ankle. She was in severe pain and unable to put any weight on it. Jennifer returned to the emergency room and had surgery later that day to repair a complicated fracture.

The doctors determined that her ankle had a simple hairline fracture from the slip and fall. However, by not listening to medical advice to stay off her feet, she made her injury much worse.

Jennifer failed to take reasonable measures to prevent further loss. The attorneys for the amusement park used her actions to significantly decrease her settlement by refusing to pay for Jennifer’s second emergency room visit, ankle surgery, and extended wage loss.

Your Duty to Mitigate Damages

Legal rights go hand-in-hand with legal obligations. As the injured party, you have a legal obligation to limit your losses the way any reasonable person would in the same situation.

Depending on your accident and injuries, you have an obligation to:

  • Seek timely medical care
  • Follow medical advice
  • Return to work when able

The duty to mitigate damages means you must take reasonable steps to avoid making your injuries worse or racking up unnecessary expenses. Mitigating costs will look different from one case to the next, depending on the injuries and circumstances.

Failure to Mitigate Damages as an Affirmative Defense

If you fail to mitigate your damages, the attorneys for the party who caused your injuries can use your failure as an affirmative defense. With an affirmative defense in a tort case, the at-fault party admits to causing harm, but they assert they are not responsible for everything that happened to you.

For example, the at-fault driver’s insurance company might accept liability for their insured causing a car accident. However, the adjuster won’t pay for extra medical costs that could have been avoided if the injured person hadn’t refused medical care after the collision. Or, perhaps the victim didn’t return to work when released by their doctor.

The injured victim has the burden of proof in a personal injury case. You must prove the at-fault party’s negligence in causing your injuries. But the burden switches to the at-fault party if they want to use failure to mitigate as an affirmative defense. They must prove that you failed to mitigate your damages.

Common Ways of Failing to Mitigate Damages

Being injured in an accident doesn’t take away your patient rights. You still have the legal right and independence to make decisions about your medical care.

You might not agree with treatment, or you may even be strongly opposed to a particular treatment. When it comes to your medical care, you don’t have to do something if you don’t want to.

If you want to maximize your injury compensation, however, you should follow the advice of the medical professional who treats you.

1. Not Seeking Medical Care

After any injury, you must seek medical care as soon as possible. Not only is this best for your health and well-being, but it’s basic injury mitigation. Delaying medical attention gives the insurance company a good excuse to reduce your payout.

You don’t need to seek out the nation’s top specialist for your injury, but you do need to get medical care from a licensed physician.

If your injury wasn’t obvious or didn’t seem serious immediately after the accident, it’s understandable that you didn’t seek medical care right away. Your actions were reasonable under the circumstances.

For instance, you may have a sore wrist following a slip and fall accident. Given your mild symptoms, you might think it’s just sprained and will go away on its own. However, if it still bothers you after a few days of ice and rest, you might go to the doctor and find that your wrist was broken in the fall.

Under these circumstances, you took reasonable action as soon as you were aware of the problem, and the delay should not be held against you as a failure to mitigate damages.

2. Disregarding Medical Advice

You have the right to refuse medical care and advice for any reason. However, victims refusing medical care or advice will have to fight to get compensation for any consequences occurring because of the refusal.

If a prudent person would follow specific medical advice, the at-fault party can’t be held liable for any further consequences that result from not following that advice.

For example, if your doctor instructed you to take an antibiotic to prevent infection after a dog bite, but you never got the prescription filled, it’s a failure to mitigate damages if you end up in the hospital with a nasty infection. The dog’s owner might not be responsible for your hospital bills.

It’s not your fault if your condition gets worse, so long as you were following medical advice and told your doctor about the worsening symptoms right away. Your increased amount of damages are justified because you couldn’t avoid your worsening condition and additional medical expenses.

3. Refusing Recommended Surgery

If your physician recommends surgery for your injury, you have the right to refuse. Just like any other medical procedure or treatment, you must give your consent.

However, if you choose not to have the surgery, it could mean that you didn’t mitigate your damages. Refusing an operation that could substantially lessen your injury or recovery time might mean you won’t receive full compensation for the non-surgical outcome.

If a reasonable person in a similar situation would have a relatively simple surgery with a high success rate, the attorneys for the at-fault party will use this against you.

Of course, some surgeries come with a higher risk of death or additional injuries. Depending on the situation, you’re not expected to take extreme medical risks or agree to experimental therapies to heal.

Injured individuals can justify not going through the pain and stress of surgery if it involves hazards, dangerous risks, or the doctor cannot say with a degree of medical certainty that an operation would improve the outcome.

4. Relying on Alternative Treatments

Most insurance companies don’t consider alternative treatments a substitute for traditional medical care. And they will often refuse payment for what they consider excessive chiropractic care.

If you want to use an alternative treatment it’s best to seek expert medical and legal advice before proceeding.

Some alternative injury treatments include:

  • Acupuncture
  • Chiropractic care
  • Aromatherapy
  • Homeopathic remedies
  • Herbal medicine
  • Massage therapy
  • Electromagnetic therapy

Most insurance companies won’t pay for injury treatments that are not considered medically necessary by mainstream medical experts.

Mitigating Your Lost Wages

After an injury, you may not be able to return to work right away or work in the capacity that you did before the accident. Your lost wages make up a portion of your damages.

You can’t simply decide to stay home from work and expect the insurance company to pay your lost wages. There must be a good medical reason for you to stay off the job before the insurance company covers your lost income.

For most injury claims, the insurance carrier is only liable for employment losses up to the point your doctor said you could return to work, whether you decide to go back to work or not.

On the other hand, you aren’t doing yourself any favors by returning to work before your doctor releases you. If your doctor tells you not to return to work until six weeks after your surgery, and you comply, you are mitigating your losses.

Follow your doctor’s instructions about work activity limits. Not complying with their advice is a failure to mitigate your damages.

Even with a doctor’s note, the insurance adjuster might question the medical necessity of your treatment or work restrictions. The adjuster might even request you to have an Independent Medical Examination.

What is an Independent Medical Examination?

An Independent Medical Examination (IME) is an insurance company tool for obtaining a second opinion about your injuries and damages. Workers’ compensation IMEs are commonly ordered by the insurance company when the injured worker remains off the job.

Similarly, auto insurance companies, homeowner’s insurance carriers, and other liability insurers may resort to an IME if an injury claim progresses to a lawsuit.

A licensed physician, usually one who specializes in your type of injury, performs the IME. The IME doctor works for the insurance company and will not treat your condition or give you advice.

The insurance company has a right to verify the exact nature and extent of your injuries. If you don’t cooperate, the insurance company can ask the court to order you to complete the IME or risk having your injury claim dismissed.

You Don’t Have to Fight Alone

Personal injuries often leave victims with hefty medical bills and missing paychecks. The good news is that you don’t need to spend any money out-of-pocket to meet with a personal injury attorney. Experienced attorneys typically offer a free consultation to injury victims.

Many injury attorneys represent victims on a contingency fee basis. Your attorney doesn’t get paid unless they settle your claim or win your case in court.

No matter what type of injury you have, your personal injury lawyer will guide your mitigation efforts and help you get the full compensation you deserve.

Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>