The court cannot undo the pain and suffering you sustain because of a personal injury or accident. However, it can hold a party financially responsible for the harm they cause.
Damages represent the loss and harm you sustain because of a personal injury or accident. Damages include your financial losses or economic damages. They also include your non-economic damages, which include impairments, pain, and suffering.
Even though another party causes a person’s injuries and financial losses, the victim has a duty to mitigate damages after an accident or injury. Failure to mitigate damages could severely impact the amount of money received for a personal injury claim.
What Is the Duty To Mitigate Damages in a Personal Injury Case?
The duty to mitigate damages is your obligation to take reasonable steps to limit the harm caused by another party’s actions. In other words, you should not make your damages worse by intentionally or negligently failing to act with reasonable care.
“Reasonable” is based on the reasonable person standard. Jurors determine what a reasonable person would have done in the situation and compare your actions to that standard. If your actions fall short of the standard of care, the jurors could determine you failed to mitigate damages.
For example, the jury may determine that a reasonable person would not have tried to lift a bed when their doctor told them to limit lifting to 10 pounds or less. However, let’s say you tried to lift the bed and caused your back injury to become worse. In that instance, the jury might determine that you failed to meet your duty to mitigate damages.
Personal Injury Cases and Allegations of Failure To Mitigate Damages
When a victim fails to mitigate damages, the court can reduce the amount of money you receive for your claim.
Let’s go back to our example above. Before you lifted the bed, your doctor said that physical therapy and rest would likely result in a complete recovery within a few weeks.
However, when you lifted the bed, you aggravated your injury. Now, you need additional physical therapy, which could require surgery.
Under the legal theory of failure to mitigate damages, you would not be entitled to compensation for any damages related to injuries sustained by lifting the bed. Therefore, you would be responsible for the medical bills, lost wages, and other costs attributed to your failure to follow your doctor’s instructions.
Insurance companies like to allege failure to mitigate damages in personal injury cases because it lowers the amount they must pay to settle the claim. Insurance adjusters are skilled in discovering things a victim might do that could be used to accuse them of failing to mitigate damages.
Examples of Ways You Can Mitigate Damages After an Injury or Accident
What you do after an accident can profoundly impact the outcome of your personal injury claim. Examples of reasonable steps that can help you avoid allegations of failure to mitigate damages include:
- See a medical provider as soon as possible after your accident. Delays in medical care are commonly used to allege failure to mitigate damages.
- Follow your doctor’s treatment plan. If you question the treatment plan, seek a second opinion immediately.
- Do not miss doctor’s appointments. If you miss an appointment, reschedule the appointment and write down exactly why you missed the appointment.
- Attend and participate in rehabilitative therapies, including occupation and physical therapy.
- Do not return to normal activities until your doctor releases you to do so.
- Make notes about the steps you take to improve the healing process.
- Do not return to work until your doctor gives you the okay. If your doctor prescribes light duty, follow their restrictions.
You can also help your case by avoiding social media posts. You might assume security settings prevent insurance companies from accessing your online content, but that is not always true. Posts online could be misconstrued or intentionally twisted to imply that you did something that jeopardized your recovery.
What Should I Do if the Insurance Company Claims I Failed To Mitigate Damages After a Phoenix Accident?
Do not argue with the insurance adjuster or the company. Instead, call a personal injury lawyer to discuss your case.
The insurance adjuster may pressure you to accept a settlement offer because you “will” receive less at trial since you failed to mitigate damages. Do not fall for this insurance scare tactic.
Our legal team can investigate your claim to gather evidence proving the severity of your injuries. We work with your physicians and medical specialists to determine if your actions impacted your recovery and damages. Before assuming you did something wrong, please talk with a lawyer who has your best interests as their only priority.
Contact Us for a Free Consultation With Our Personal Injury Lawyers
Failure to mitigate damages is just one of the tactics insurance companies use to avoid liability for claims. Call Curiel & Runion Personal Injury Lawyers at (602) 595-5559 to learn how we can help you recover the maximum compensation available for your claim. Your initial consultation with an experienced personal injury attorney is free of charge.