How to Mitigate Injury Damages to Maximize Your Compensation

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.

If you have injuries caused by another person’s negligence, you have the legal right to pursue compensation.

You also have a legal obligation to do what you can to reduce your damages, or at least not make them worse.

Mitigation means doing what you can to lessen the impact of your injuries and expenses after an accident. No matter what type of accident you’re in or the injuries you sustain, you should do everything you reasonably can to minimize the negative consequences.

If the insurance company (or the at-fault party’s lawyer in a lawsuit) can prove the injured party failed to limit their losses after an injury, the victim’s injury compensation can be reduced accordingly.

Here we explain how mitigation works and what you can do to limit your losses after an injury.

How Mitigation Works in Injury Cases

The legal mitigation of damages concept works to deny an injured person’s right to recover parts of their damage claim if some of the claimed expenses could have been avoided. In general, this means you have to follow your doctor’s medical advice and return to your job when your doctor says it’s okay so you don’t rack up extra costs.

An insurance company or their attorneys can deny the victim’s right to recover parts of their damages if they can prove that they did not act reasonably to lessen their losses.

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 accident.

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: Mitigating 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 mitigate her damages. 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 Obligation to Limit 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 use common sense to keep your losses at a minimum. 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, 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 victim 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 claim. But the burden switches to the at-fault party if their insurer or attorneys want to use failure to mitigate as an affirmative defense. They must prove that you failed to mitigate your damages.

Mitigating Medical Damages

Being in a personal injury 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. You don’t have to do something you don’t want to when it comes to your medical care.

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

Failure to Seek 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 compensation.

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 a week later or the pain increases, you might go to the doctor and find that your wrist was broken in the fall.

Under these circumstances, you acted reasonably, and the delay should not be held against you as a failure to mitigate damages.

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 the medical advice, the at-fault party can’t be held liable for any further consequences that result from your lack of medical care.

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 with a nasty infection that lands you in the hospital. 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 alerted your medical provider to the worsening symptoms right away.

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 the permanency of your injury or your 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.

Using Alternative Treatments

Alternative treatments for personal injuries are on the rise and have been for several decades.

Some alternate injury treatments include:

  • Acupuncture
  • Chiropractic care
  • Holistic therapies
  • Homeopathic remedies
  • Herbal medicine
  • Massage therapy
  • Electromagnetic therapy

Typically, alternative treatments should not be a substitute for recommended medical treatment. If you want to use an alternative treatment, it’s best to speak with your physician and consult a lawyer first.

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

Mitigation and Employment

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 your lost wages 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 medical costs.

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?

One of the tools that the insurance company’s lawyers might use to determine if you mitigated your damages or if you have pre-existing conditions is an Independent Medical Examination (IME). An IME is their legal way of 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 and other liability carriers 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 will not treat your condition or give you advice.

Sometimes the physician will have an existing relationship with the insurance lawyers, which can unfairly impact the results of the IME in favor of the insurance company.

If you haven’t already, protect your claim by consulting an experienced personal injury attorney before agreeing to an IME. 

Injured parties have the following rights when it comes to an IME:

  • The insurance company must provide advance notice of the time, location, and nature of the examination
  • Only one IME is permitted unless there is a valid reason for additional exams
  • The insurance company or their client must pay for the IME
  • The IME doctor is required to be available for questioning by the victim’s attorney at deposition or trial
  • All parties in the personal injury lawsuit can review the IME report

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 tell you to have the IME done or risk having your injury claim dismissed.

Your attorney can help your claim by getting you ready for an IME and managing how the IME report impacts your case.

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. Most lawyers don’t charge for injury consultations.

Many injury attorneys will represent you based on a contingency fee. 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, it’s crucial to mitigate your damages. If you choose to hire an attorney, they can help you reduce your losses and fight for the injury compensation you deserve.

It costs nothing to find out what an attorney can do for you.


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 >>