Attorney David I. Fuchs
Aug. 12, 2016
In the state of Florida, personal injury plaintiffs (i.e. the injury victims) have a duty to mitigate their damages, or to put it another way, plaintiffs must act such that they minimize the injuries they suffered – both physical and financial.
Failure to mitigate can have serious consequences for the success of your claim. Not only will a failure to reasonably mitigate your damages hurt your perception as a legitimate injury victim at trial, but the defendant may assert this failure to mitigate as an affirmative defense. If the defense is successful, your damages recovery may be reduced substantially.
If you have questions about what steps you should take following an injury, contact an attorney at David I. Fuchs, Injury & Accident Lawyer, P.A. to schedule a free initial consultation. (954) 568-3636.
Plaintiffs must use ordinary care and reasonable diligence in securing medical aid, must submit to reasonable treatment, and must follow the advice of a competent physician (see City of Clearwater v. McClury). Ignorance, laziness, and fear do not excuse a plaintiff’s failure to seek out reasonable medical attention.
Refusing to seek out medical attention in a timely manner after the injury may result in a failure to mitigate finding. If the injury is relatively minor, this may not be a significant issue, but if the injury is significant and obvious, then an unjustified delay in seeking medical attention is likely to negatively affect the plaintiff’s damage recovery.
Unless the treating physician requests that the plaintiff avoid certain alternative treatments such as chiropractic care, acupuncture, and homeopathy, using alternative treatments in conjunction with traditional medical treatment is generally fine. On the other hand, if a plaintiff is seriously injured and utilizes alternative treatments in lieu of traditional medical treatment, then the court may find this behavior unreasonable and the plaintiff’s damages recovery may be affected.
A plaintiff cannot recover for damages that would have not have been realized had the plaintiff sought reasonable medical treatment and been cured or had the plaintiff’s injuries otherwise been alleviated by such treatment. Importantly, however, the plaintiff must have failed to act as a reasonably prudent person would have acted in submitting to a particular treatment.
How might a reasonably prudent person act when seeking medical care after a serious injury?
Suppose that a plaintiff has suffered a spinal injury due to a high speed motor vehicle accident. The plaintiff experiences severe pain when walking around, and is thus largely confined to a wheelchair, which has significantly impacted his quality of life. Unfortunately, the plaintiff’s treating physician and other staff express their concern that standard treatments are not likely to help improve his condition.
Some months later, the treating physician shows the plaintiff an experimental surgery available to early applicants. The surgery is quite risky – with a high projected mortality rate – but it may result in the resolution of the plaintiff’s spinal injury.
If the plaintiff declines this experimental surgery, it is unlikely that the court will find that he acted unreasonably, or that the plaintiff failed to mitigate his damages by rejecting said surgery. The outcome was not only uncertain, but the surgery was especially dangerous. The court is much more likely to find that a reasonably prudent person who is not terminally ill would not risk death for an experimental surgery with an uncertain outcome.
If a treatment is low-risk and is deemed likely or certain to alleviate the injury, then the plaintiff may be held accountable for failing to pursue such treatment, and thus failing to reasonably mitigate their damages.
In Florida, the personal injury damages total may include lost wages and lost future earning capacity. As a consequence of their injuries, a plaintiff may have to reduce their hours – or may even have to resign – for their existing employment. An injury may even force a plaintiff to seek out an alternative career path as their existing career path may no longer be suitable. As such, lost wages are a crucial component of a personal injury claim in many cases.
If a plaintiff fails to expend reasonable efforts to find suitable employment, however, they can still be held accountable for failure to reasonably mitigate their damages – here, damages related to their lost wages and lost earning capacity.
For example, suppose that a plaintiff has her arms injured in a motor vehicle accident. Plaintiff works as a warehouse stocker. Her arms become much weaker following the accident, which causes issues with her employment situation. Forced to resign, the plaintiff seeks out alternative employment. After a few weeks of interviews, however, the plaintiff stops actively seeking out employment. A year later, the plaintiff is still not gainfully employed as a result.
If the plaintiff here were to sue the defendant for lost wages, the defendant would have an excellent affirmative defense on the basis of the plaintiff’s failure to reasonably mitigate their damages. The plaintiff did not attempt to secure a position consistently over the year. Instead, she simply stopped trying.
Even if it is difficult to find employment, you must continue to expend effort and try to find employment. This will help protect you from a failure to mitigate assertion.
In Florida, a personal injury plaintiff must act to minimize their damages after the injury. They need not expend “extraordinary efforts”, but they must expend reasonable efforts in pursuing medical treatment and finding alternative employment. To put it simply: a plaintiff should not act in such a way as to actively worsen their condition and overall situation.
If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek legal guidance from a skilled South Florida personal injury lawyer at David I. Fuchs, Injury & Accident Lawyer, P.A..