Avoiding Increased Injury & Your Duty to Mitigate Damages
It’s Friday afternoon. You’re on your way home from work when the light turns red. You stop before entering the intersection. Unfortunately, the car behind you doesn’t stop in time. Bam! They’ve hit you from behind. You jolt forward, and your airbag deploys.
911 is called and you reluctantly make a trip to the hospital instead of the trip home you longed for all week. After seeing the doctor, you realize your injuries are more extensive than you thought. The doctor is recommending physical therapy.
Fast forward a few weeks. You see your first bill from the emergency room visit after your wreck and decide that the person who caused the accident should be on the hook for your medical expenses.
You decide to seek legal counsel and meet with an attorney who asks questions about the accident –when the wreck occurred, details about your hospital stay, and notes on the orders from your doctor. The attorney explains that along with providing the required documentation, you also have a duty to mitigate or reduce your damages.
In Georgia, the duty to mitigate simply means that a party who suffers an injury or loss arising out of the act or omission of a third party has an inherent duty to reduce or lessen the loss he or she suffered by taking reasonable steps to avoid additional injury or loss.
So let’s say you’ve followed your doctor’s orders to attend physical therapy – you have reasonably reduced further injury. It is also reasonable for you to take it easy, avoiding strenuous or extra physical activity that could worsen your injury.
While the duty to mitigate in your specific accident was fairly straightforward, attorney Drew Tuggle with Whitehurst, Blackburn & Warren explains “cases are rarely black and white, and extenuating circumstances can impact the amount of damages an injured party is owed after an accident.”
Failure to Mitigate
By now, you may be wondering what would have happened if you had not followed the doctor’s orders to seek physical therapy treatments.
“In the event you choose not to mitigate your damages by seeking treatment, then the total amount of your award at trial would be reduced by the amount that you could have avoided had you taken reasonable action,” says Tuggle.
This is because the person who is at fault in an accident or injury should only be responsible for the damages they caused.
“Georgia law does not, and will not, require a negligent party to pay for damages they didn’t cause,” Tuggle says. “If you don’t go to your medical appointments or follow up with recommended treatment, then you may not be able to get all of your medical expenses paid if your condition gets worse.”
Steps to Mitigate
In order to take the appropriate steps to mitigate damages, first you need to understand that you are not obligated to act above and beyond what would be reasonable. Georgia law only requires you to reduce your damages by using ordinary care and diligence. If you take the steps that a reasonable person would take under the circumstances, you have exercised ordinary care and diligence.
In personal injury cases, like the scenario above, the duty to mitigate damages arises most often in relation to medical treatment. Any delay in seeking medical treatment, unreasonably refusing medical treatment, disregarding the medical advice of healthcare providers, or refusing recommended surgery may all be deemed a failure to mitigate damages.
If you aren’t sure what steps must be “reasonably” taken in your specific case, it’s best that you contact an attorney to guide you through this decision.
“I believe seeking legal advice is critical,” Tuggle explains. “Because the term ‘reasonable’ is ambiguous, and that introduces substantial discretion in determining whether you took the appropriate steps to mitigate the damage you suffered.”
For more information about your duty to mitigate or to schedule a free consultation, contact the WBW team today at (229) 226-2161.