What Is Failure to Mitigate Damages?
After a personal injury accident, you may suffer significant financial losses (e.g., medical bills, lost wages, pain and suffering, etc.). Under the law, you, however, have an obligation to “mitigate” or reduce your damages (losses) by doing what you can to recover. If you fail to mitigate damages, it can be used as a defense by the at-fault party to reduce their liability or payment to you.
Duty to Mitigate Damages
No matter the type of accident you were involved in, you must try to lessen the impact of your injuries and expenses as much as possible. Generally, this means you must follow your doctor’s medical advice, return to work when your doctor approves it, and don’t rack up avoidable expenses. Insurance companies should only cover your losses caused by the covered event and not for the ones that could have reasonably been averted.
One of the most common examples of failing to mitigate damages in personal injury cases is refusing or delaying medical treatment. If you refuse treatment or delay it, an insurer could argue that prompt treatment could have lessened the severity of your injuries. To successfully minimize their payout, they will have to prove that the treatment would have reduced your pain and suffering or provided you with more function.
Consequences of Failure to Mitigate Damages
An insurance company may choose to deny or minimize the benefits you receive on a claim if they believe you could have prevented further damage or expenses. For example, an insurer may adjust your recovery on your damages, so you receive only the value of the damages up until the time when you failed to take reasonable measures to prevent further expenses. However, if the insurer decides that it is impossible to determine the extent of the damages that occurred due to the accident and the damages that resulted from your failure to mitigate your losses, they may deny your entire claim. The keyword is “reasonable,” which can be subjective and largely depends on your circumstances. Exposing yourself to significant harm is not required, but if your claim appears excessive, the insurer will likely blame you for running up unnecessary costs.
How Do You Mitigate Damages?
To ensure that your mitigation efforts will be reimbursed, it is vital to consult a Las Vegas injury attorney and assess the language within your and the at-fault party’s insurance policy. Be sure to document all of your efforts by taking photos or video, keeping receipts, a journal of symptoms, etc. If you are considering alternative treatments, such as chiropractic care, acupuncture, massage therapy, etc., they should not substitute the medical treatment recommended by your physician. An insurance company will not pay for them if they are not medically necessary.
Additionally, you must have a legitimate medical reason not to return to work and to have your lost wages covered. Do not return to work before your doctor releases you, as complying with their orders mitigates your medical costs. Similarly, don’t delay returning to work once you can.