The duty to mitigate damages requires injured plaintiffs to take reasonable steps to minimize their losses after an accident. In Texas personal injury cases, failing to mitigate can reduce your compensation even if the other party was clearly at fault. This means following medical advice, seeking appropriate treatment, and avoiding actions that could worsen your injuries.
What Does Mitigate Damages Mean?
When someone is injured, they have a duty to mitigate damages. The mitigation of damages includes seeking prompt medical treatment and following a doctor’s treatment plan.
Failing to mitigate damages could cause an injured party’s condition to worsen. For example, suppose a doctor advises a patient not to engage in strenuous physical activity after a slip and fall because it could worsen their back injury. Against medical advice, the patient plays tennis and now needs back surgery.
The defense may argue that had the patient followed the doctor’s orders, they would not have needed surgery. The injured party may not recover the losses they could have reasonably avoided.
The Duty to Mitigate in Texas Personal Injury Cases
Failing to mitigate damages is an affirmative defense that an at-fault party may use to avoid being liable for economic and non-economic damages. The at-fault party must prove the injured party did not use ordinary care to minimize damages, and the failure to use ordinary care resulted in the additional damages.
Injured parties are not required to take extraordinary measures. For example, unless a doctor states complete bed rest, a person does not need to stay in bed the entire duration of their recovery.
Examples of Failing to Mitigate Damages
Texas law requires injured parties to use reasonable care to mitigate damages. That means taking the actions that an ordinary, prudent person would use under similar circumstances. An injured party cannot recover damages for avoidable harm.
Examples of failure to mitigate damages include, but are not limited to:
- Refusing recommended surgery
- Failing to attend physical therapy
- Ignoring a medical provider’s treatment plan
- Failing to take prescribed medications
- Returning to strenuous work against medical advice
If an injured person fails to take these reasonable steps, the court may reduce or deny compensation for any additional harm that could have been avoided.
How Insurance Companies Use Mitigation Against You
Insurance companies actively pursue evidence that can reduce or eliminate their liability in personal injury cases.
Defense teams and insurers use a variety of tactics to find evidence, including:
- Monitoring social media accounts
- Personal surveillance
- Medical record review
- Searching for gaps in treatment
Evidence that you engaged in activities against medical advice and/or did not follow a prescribed treatment plan will be raised to allege a failure to mitigate damages. It could result in your personal injury settlement or verdict being reduced.
Steps to Protect Your Claim
Taking steps to protect your claim reduces the risk that a party may prevail on a failure to mitigate damages claim.
Steps you can take include:
- Seek prompt medical attention after an injury or accident
- Avoid activities that could worsen your injuries
- Follow all treatment recommendations
- Seek prompt second opinions if you disagree with medical advice
- Make a good faith effort to return to work when cleared by your doctor
- Attend all appointments
- Complete physical therapy and other treatments
- Keep receipts and document everything
- Communicate honestly with your physicians and medical providers
- Report symptoms and limitations to doctors promptly
Insurance defense tactics often use mitigation to avoid damages. Seeking legal guidance early in your case can help you protect your rights.
When Mitigation Isn’t Reasonable
As mentioned above, injured parties are not required to take extraordinary steps that are unreasonable. For instance, a court might find that refusing to undergo risky surgery or to spend a significant amount of money they do not have is failing to mitigate damages. Likewise, it may not rise to the level of failing to mitigate damages by refusing to take actions that pose a significant risk of harm to the injured person.
Defendants in a personal injury case have the burden of proving failure to mitigate damages as a defense. The level of proof is based on a preponderance of the evidence. That means the jury must believe there is more than a 50% likelihood that the injured party’s actions caused additional injury and/or losses.
Contact The Law Firm of Alton C. Todd Personal Injury Lawyers for a Free Consultation
Understanding your duty to mitigate damages can significantly impact your personal injury recovery. The Law Firm of Alton C. Todd Personal Injury Lawyers has recovered over $500 million for injured clients and brings over 58 years of combined experience to every case. Contact us today at (281) 992-8633 for a free consultation.
