Tampa Medical Malpractice Lawyer

Sometimes a person will act in an unreasonable manner and harm you. If this happens, the person may owe you compensation. The law calls this compensation “damages.”

However, you have a duty to reduce, or “mitigate,” the injuries and damages you’ve suffered in certain circumstances. This duty to mitigate sometimes prevents the victim from recovering all their damages from the at-fault party. The victim must try to reduce the damages or risk forfeiting a portion of their award.

What is the Duty to Mitigate Damages?

A plaintiff who proves their personal injury case may receive compensation. This compensation, called damages, includes past and future medical expenses, lost wages, and property damage, to name a few.

Other (non-economic) damages include pain and suffering, inconvenience, mental suffering, and emotional distress. These compensate you for the non-financial harms of an injury.

However, an injury victim has a duty to mitigate their damages after an accident. This means they must avoid incurring unnecessary expenses related to their injury. If a victim incurs unreasonable costs after an accident, the at-fault party might accuse them of failing to mitigate damages.

Florida law requires them to take reasonable steps to avoid further damages after an accident.

Who Decides Whether an Injury Victim Failed to Mitigate Damages?

An accident victim doesn’t have to take every step to avoid damages after an accident, no matter how inconvenient or expensive. They must only take reasonable precautions to prevent additional losses.

A jury typically decides whether an injury victim acted reasonably in minimizing their losses related to an accident. 

Common sense and prudence should tell you whether an action is reasonable to limit losses or further injury. If a precaution is affordable and results in minimal inconvenience (such as buying a knee brace after a knee injury), it is most likely necessary.

Failure to mitigate damages is an affirmative defense. The defendant must allege your failure to mitigate in their response to your complaint or in other court documents. It does not arise automatically.

Here are some examples of failure to mitigate damages:

Duty to Mitigate Medical Expenses

The victim can fail to mitigate damages in several ways. For example, they can refuse surgery or use alternative medicines. Or they may object for religious reasons.

Refusing to Have Surgery

Sometimes a person refuses to have surgery, even though it may be the best course of action. For example, if the plaintiff gets into a car accident and injures their back, doctors may recommend surgery to prevent permanent damage. However, suppose the plaintiff refuses to have this surgery and ends up paraplegic. 

Only after this happens does the car accident victim decide to have surgery to regain mobility. However, this is a different type of surgery than the original proposed one and costs twice as much.

In this case, it’s probable the plaintiff failed to mitigate their damages by not having the first surgery and likely wouldn’t be compensated for the additional cost of the second surgery.

Alternative Medicines

Perhaps an injured plaintiff is not a big believer in Western medicine and chooses to try alternatives like holistic or homeopathic cures rather than traditional medical treatment. A jury may well find that this does not constitute mitigation of damages through the use of “ordinary and reasonable care.”

Religious Objections to Medical Treatment

Some people have religious objections to taking medications or seeking other healthcare treatment. For example, assume that an injured plaintiff can eliminate the pain associated with a temporary neck injury by taking an inexpensive medicine. However, due to religious objections, the plaintiff refuses to take medicine and instead opts for much more expensive physical therapy over a period of several months.

So does the plaintiff’s refusal to take the pain medication constitute a failure to mitigate damages? It’s a tricky question because the constitutional rights to freedom of religion arise as well. In this instance, consulting an experienced personal injury attorney would be recommended so that they can examine the specific facts of your case and the applicable law.

Duty to Mitigate Lost Wages

Another major category of economic damages is lost wages. In this context, the issue is whether or not the plaintiff took reasonable steps to seek alternative employment. For example, assume a baseball player loses sight in one eye and is no longer able to play the sport. The duty to mitigate generally requires that the player seek alternative employment to reduce the lost wages.

For example, they could try to find employment as a sports agent or as a baseball coach. Both of these would likely be found to be a reasonable mitigation of damages.

Comparative Negligence Versus the Duty to Mitigate

Sometimes, there is confusion between the doctrine of comparative negligence and the duty to mitigate. Both involve reducing the award of damages due to the plaintiff’s conduct. Comparative negligence, however, refers to when the plaintiff is partially at fault in the accident and has their damages proportionately reduced. 

That conduct is at the heart of who is at fault (and thus responsible) for the plaintiff’s injury. The duty to mitigate instead operates after the fault has been established and applies to the damages.

Contact a Tampa Personal Injury Lawyer for Help

If a person injured you due to unreasonable behavior, you can file a personal injury claim against them.

Consider hiring an experienced personal injury lawyer at Catania & Catania, P.A. to help you file the lawsuit. Contact our Tampa law office or call us at (813) 222-8545 today. Our attorneys will help mitigate damages and fight for the compensation you deserve.