In almost every case defendants allege that the injured person “failed to mitigate” their damages.
Here’s how the Washington jury instruction (the law the court gives to the jury) reads:
A person who is liable for an injury to another is not liable for any damages arising after the original injury that are proximately caused by failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damages.
Basically, what that means is that an injured person has to take reasonable steps to get better. If you have a big gash in your leg, you need to get it stitched up, so you don’t bleed out.
But sometimes decisions about treatment aren’t so cut and dried.
We have a couple of cases right now where the defendants are taking the position that our clients haven’t mitigated their damages because they’re resistant to electro-shock therapy. Kind of like “vibration therapy.”
Fortunately, injured people don’t have to try every crazy treatment suggested by defendants. There are limits.
The same jury instruction goes on:
In determining whether, in the exercise of ordinary care, a person should have secured or submitted to medical treatment, as contended by defendant, you may consider the nature of the treatment, the probability of success of such treatment, the risk involved in such treatment, and all of the surrounding circumstances.
But it is important that injured people—at a minimum—follow the recommendations of their own providers. Otherwise, they’re going to have an uphill battle establishing that their symptoms were a big deal and/or that they mitigated their damages.