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Mitigation of Damages |

The Supreme Court of Indiana has consistently held that “a plaintiff in a negligence action has a duty to mitigate his or her post-injury damages, and the amount of damages a plaintiff is entitled to recover is reduced by those damages which reasonable care would have prevented.”

This means the law:

  • does not reward a person for exploiting their injury in the hopes of increasing damages; and
  • does not impose liability for damages the injured party could and should have avoided with reasonable action.

Seeking Medical Treatment

One of the most common ways that a plaintiff finds themself facing an argument that they did not mitigate their damages is by failing to go to doctor’s appointments. If you skip medical appointments, you’re giving the insurance company a pretty easy argument that you haven’t done enough to mitigate your damages. 

The insurance company will say that if you would have gone to your appointments and followed medical advice, you would have recovered. Even if you begin experiencing pain six months later, the insurance company is off the hook. Their obligation ended when you failed to do what your doctor instructed.

Missing one appointment because of an emergency is not the end of the world, but repeatedly failing to follow through with treatment is not a good idea. It will almost certainly sabotage your injury case.

Prescriptions

When the doctor prescribes medications and you don’t take them—guess what? You’re failing to mitigate your damages. If you have any questions or reservations about the treatment, you should follow up with your doctor. This should provide you with both a solid medical opinion and evidence that you were seeking professional advice.

If the doctor tells you to avoid lifting or any sort of strenuous physical activity, you should follow this direction. If you don’t, the insurance company will argue that your ongoing injuries are a direct result of you ignoring medical advice.

Surgery

Surgery always involves a certain amount of risk. When surgery is recommended to you, and you decide against it, this is a risk to both your health and your personal injury case. It’s important you consult your doctor when you are in a situation like this, because it will help get both medical and legal answers.

You should also talk to your attorney if you ever find yourself in a situation involving a surgery recommendation. When determining if a declined surgery is equivalent to a failure to mitigate, and court is going to consider:

  • the likelihood of the surgery succeeding;
  • the risks of the procedure;
  • the pain and inconvenience involved; and
  • the injured person’s ability to pay for the treatment.

Make the Right Call

If you’ve skipped appointments, failed to follow through with therapy, avoided your prescribed medications, and ignored medical advice, you probably don’t have a great personal injury claim. If you’re unsure about the timeline, you should talk to an attorney to see what arguments might still be available to you.

If you have any questions about personal injury, give us a call at 317-632-3642. Stay safe and look out for each other.