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Mitigation: Required For More Than Just Your Marriage

I say stupid things sometimes despite my vast higher education and life experiences. Most of the time, these stupid utterances occur in the context of marital relations. Consider the following exchanges:

Wife: Does this make me look fat?

Stoopid Me: Kind of.


Wife: Do you like this new outfit? I worked hard on putting it together.

Stoopid Me: Eh, not really.


Wife: Why can’t you ever just pick up your clothes and put them in the laundry basket instead of the closet floor?

Stoopid Me: Because I’ll do what I want.

As a result, I have learned that our couch can be quite comfortable to sleep on and that our German Sheppard is fond of my side of the bed. I have also become aware that on occasion I am an [explitive sensored], at least according to my wife. Folks, in case you were not aware, the average cost of divorce in North Carolina is rougly $3,500.00 and the average rate for a divorce attorney is about $200.00 per hour. This is expensive, so when these situations arise I try to mitigate the damages I have allegedly caused with flowers, shoes, shiny things, and dinners at nice restaurants.

A marriage is not the only place where mitigation must take place. A plaintiff in a personal injury lawsuit is also under a duty to mitigate their damages.  A jury is instructed by a judge in a trial on the defense of mitigation as follows:

“A person injured by the negligent conduct of another is nonetheless under a duty to use that degree of care which a reasonable person would use under the same or similar circumstances to seek treatment, to get well and to avoid or minimize the harmful consequences of his injury. A person is not permitted to recover for injuries he could have avoided by using means which a reasonably prudent person would have used to cure his injury or alleviate his pain. However, a person is not prevented from recovering damages he could have avoided unless his failure to avoid those damages was unreasonable.”

For example, let’s say that a doctor recommended that a plaintiff undergo physical therapy as conservative treatment to try to alleviate their injuries. Plaintiff, obstinate like the author, refused to undergo physical therapy and goes about his daily life. The plaintiff goes mountain biking instead of to physical therapy, and causes his injury to become more severe and aggravated. He must now have surgery, whereas if he had undergone the physical therapy surgery could probably have been avoided. The defendant in a situation like this could raise the affirmative defense of mitigation, and it would be possible that the plaintiff could be stuck paying for his own surgery because he failed to mitigate his injuries and damages.  The defense could also potentially be raised in situations where you underwent unauthorized, unhelpul, duplicative and/or excessive treatment.

But what happens if you do not have health insurance and your doctor has recommended surgery or some other expensive treatment you cannot afford? What if you have health insurance, but the risks of recommended treatment make you not want to do it (e.g., paralysis and death vs. 10% of effectiveness)? The law does not draw a hard and fast line on the defense of mitigation. It is a reasonable person standard, and the jury is to consider all of the circumstances surrounding one’s decision not to follow medical advice. These circumstances may include the financial condition of the plaintiff, the degree of risk involved, the amount of pain involved, the chances of success, the benefits to be obtained from the procedure, the availability of alternate procedures, whether the various healthcare providers agree among themselves as to the advisability of the procedure, and the knowledge or lack of knowledge of the plaintiff.

The burden of proving the defense of mitigation is carried by the defendant. However, if they are able to prove that the plaintiff acted unreasonably and failed to mitigate their treatment, it is a jury’s duty to decrease the plaintiff’s actual damages because of his unreasonable failure to avoid or minimize his injuries.

It is important should you find yourself injured by the negligence of another to follow the recommendations of your medical providers and undergo the recommended reasonable treatment. If you fail to do so, and you have not made a reasonable decision based on fully informed consent, you could be stuck paying some of those bills yourself.

Disclaimer: The views of the author are his own. Nothing in this blog post should be construed as legal advice. Examples of the exchanges between the author’s wife and the author are few and far between. Divorce has never been contemplated, and the author would like to extend a special  thank you to  the excellent chef at Cafe Luna, the jewlers at Tiffany & Co., the growers of flowers, the chocolatiers at Hershey, and the shoemakers at Cole Haan for this.  On behalf of his wife, the author would like to extend a special thank you to Buffalo Wild Wings and REI for those [much more frequent] occasions when she utters equally stoopid things.

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