Even when a personal injury case results in a settlement or verdict, there are a number of factors could impact the plaintiff’s net recovery. One factor is whether the plaintiff has mitigated their damages, or taken reasonable steps to minimize the losses arising from their accident.
When Might a Dispute Arise over the Mitigation of Damages?
The defense might contend that the plaintiff has failed to mitigate damages if:
1. The Medical Evaluation Was Delayed
Many people will do their best to avoid visiting a doctor due to the cost and inconvenience. But putting off medical care might constitute a failure to mitigate damages. The defense might assert that a reasonable person would have sought care earlier and this would have resulted in a more favorable prognosis, and leading to lower medical costs and other damages.
If such a dispute arises, the plaintiff’s attorney might counter it by arguing that the symptoms were so minor or latent that a reasonable person may not have sought care any earlier in the same circumstances. Evidence to support this defense might include the deposition of your treating physician and retained medical experts, as well as your medical records.
2. Plaintiff Ignored Doctor’s Orders
Have you deviated in any way from your doctor’s orders? This is one question your attorney might ask during the free initial consultation. Its purpose is to assess the likelihood that the insurer will argue you have neglected your treatment and therefore have failed to mitigate your damages.
Many people don’t realize how limiting a serious injury can be until they experience one firsthand. Having to spend days, weeks, or even months not partaking in your favorite activities—and perhaps not earning an income—can be arduous, so it’s not uncommon for injury plaintiffs to disobey their medical providers’ instructions. Common examples of this include:
- Missing Doctor’s Visits: Depending on the kind of injury sustained, you may have to undergo a wide range of treatments including surgeries, physical therapy, and regular follow-ups. There are all sorts of reasons why you might miss an appointment, but if you do so regularly, it could cause your condition to worsen, increase the likelihood of complications, or prolong your recovery. There’s usually a readily accessible paper trail to prove that a plaintiff has missed medical appointments, so this is a common focus for insurance adjusters and defense attorneys.
- Participating in Strenuous Activities: Many injuries require a patient to rest and avoid strenuous activities for an extended period of time. If you partake in such activities against your doctor’s orders, the insurer might say that your negligent decision to do so has increased the damages. To support this defense, the insurer might use social media content such as photos of you or text posts about the activity—which could come from either your own social media profiles or the profiles of close friends and family. There might also be surveillance footage, receipts, and other documentation to use against you.
- Not Filling Prescriptions: Failing to take medication prescribed by a doctor might slow down recovery or allow a patient’s condition to deteriorate, leading to higher medical costs and perhaps lost income and other damages.
- Returning to Work: Being unable to earn an income is one of the most distressing parts of healing from an injury. But if you return to work despite your doctor instructing you not to do so, it could lead to a dispute over the mitigation of damages.
How to Avoid Disputes over Mitigating Damages
From the moment your injury happens until your case is resolved, you have to be diligent about what you say and do. Think carefully about how your statements and actions might impact your claim.
Here are a few specific tips to keep in mind:
- Disable or Update Your Social Media Accounts: There are many ways for an insurance company to use social media posts to dispute a personal injury claim. A text post that describes the accident might implicate you as partially or entirely liable. A post about an injury or illness you have might lead to a dispute over causation; in other words, the insurer might say that the healthcare costs you are claiming were caused by a preexisting medical condition and not the accident. When it comes to the mitigation of damages defense, the insurer might use photos of you taken after the accident to argue that you have ignored your doctor’s orders. If you don’t disable your social media accounts, you should at least adjust your settings so only your connections can view your posts. However, this strategy might still allow the insurance adjuster to see your connections, whose profiles might be monitored for photos of you or posts referencing you. It is therefore best to deactivate your social media profiles temporarily.
- Take Your Healthcare Seriously: Show up on time to your follow-up appointments. If you are instructed to do physical therapy at home, don’t skip it. Fill your prescriptions, and follow any specific treatment instructions provided by your medical team.
- Be Patient with Your Recovery: Don’t rush back to work or physical activities. This can be one of the most challenging aspects of recovery, and it’s a mistake made by many personal injury claimants. Insurance adjusters are well aware that claimants are often under tremendous financial strain. You might not think they are monitoring your activity, but you could be placed under surveillance. People who witnessed you at work might be deposed during discovery. There might also be surveillance footage that indicates you were working. The bottom line is you should be careful about what you say and do over the course of the proceedings, even if you don’t think the insurance company could possibly find out.
Call (562) 206-1939 to Speak with a Long Beach Personal Injury Lawyer Today
Your Injuries Are Personal to Me
Attorney Michael D. Waks has many years of experience taking on some of the largest insurance companies in California. He knows how to avoid and overcome disputes that have the potential to reduce your financial recovery. To discuss your case in a free consultation, call us today at (562) 206-1939 or send us a message.
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