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How Mitigation of Damages Can Affect Your Personal Injury Case

By Keith Stachowiak on November 17, 2015 // Leave a Comment

Personal injury case mitigation of damagesDo I have to follow my doctor’s orders if I have been injured?

Should I continue to seek treatment from a doctor if I want to file a lawsuit?

These are common questions many clients ask us during the course of our representation. Both questions are important to any personal injury case because the defendant will likely defend the lawsuit by claiming the injured person failed to mitigate his or her damages.

As Milwaukee personal injury attorneys, we want to make sure you undesrtand all of the legal terminology that may affect the positive outcome of your personal injury case. 

What is Mitigation of Damages?

Mitigation of damages means that a person must take reasonable steps to make the injuries he or she received less severe. In the context of a personal injury case, this means an injured person should seek treatment for any injuries, follow up with treatment if the symptoms persist, and listen to the doctor’s orders.

In Wisconsin, a person who has been injured has a duty to mitigate his or her damages. According to the Wisconsin Jury Instructions Section 1730, “This duty to mitigate damages requires an injured person to use ordinary care to seek medical (and surgical) treatment and to submit to and undergo recommended medical (or surgical) treatment within a reasonable time to avoid or minimize any damage from physical injuries.” If the jury decides that a person did not seek the appropriate treatment or did not follow his or her doctor’s advice, the jury can take the failure to make the injury or damages less severe into the calculation of damages. The jury will be instructed that if the defendant proves the injured person failed to mitigate, it can reduce damages for any part of the injuries that could have been avoided if he or she was treated properl.

How do Mitigation of Damages Affect Your Case?

From a practical standpoint, mitigation of damages means that after a person is injured, he or she should seek medical treatment and follow the advice of a doctor. This does not require an injured person to follow every recommendation given by the doctor. The Wisconsin Jury Instruction also specifies that the duty to mitigate does not require an injured person to undergo treatment that is “unreasonably dangerous” or “not reasonably within his or her means.” Therefore, it is important to follow the doctor’s advice to the extent it is possible for each injured person.

To Improve Your Personal Injury Case, Avoid Injury Aggravation

Another part of mitigation of damages is taking reasonable steps to avoid aggravation. For example, if you were involved in a car accident and injured your foot, you should follow your doctor’s orders to keep the weight off of your foot and avoid going for a run the next day. Because the run could make the injury worse, this would also constitute a failure to mitigate.

A Case Study on Mitigation of Damages

In order to better understand mitigation of damages in Wisconsin, it is helpful to look at Wisconsin Supreme Court case Lobermeier v. General Telephone Co. of Wisconsin, 119 Wis. 2d 129, 349 N.W.2d 466 (1984). Although the case is several years old, it is still good law in Wisconsin. In Lobermeier, Mr. Lobermeier was using a telephone when “a lightning-induced electrical charge” shocked his left ear and ruptured his eardrum. Id. at 133, 349 N.W.2d at 468. After conservative treatment of antibiotics and ear drops for the first few months, Mr. Lobermeier underwent his first surgery on his left ear. Id.
A few years later, while being treated by a new doctor, Mr. Lobermeier complained of hearing loss and ringing in his ear. Id. at 134, 349 N.W.2d at 469. The doctor concluded that the previous surgery had caused hearing loss and the possibility of another disease and recommended surgery. Id. The plaintiff, elected not to undergo the surgery. Id. The trial court ruled that the plaintiff’s decision to not undergo the recommended surgery did not fall into a duty to mitigate damages. Id. The Supreme Court of Wisconsin ruled this was an error and the jury should be able to discern whether undergoing an elective surgery was a failure to mitigate damages. Id. The court held a person is not “required to undergo treatment that only offers a possibility of a cure.” Id. at 147, 349 N.W.2d at 475. But, the court remanded the case to the lower court for the jury to decide if this was a failure to mitigate. Id. at 150, 349 N.W.2d at 476.
The rule for mitigation is that the telephone company would have to show that “a person of ordinary intelligence and prudence under the same or similar circumstances would have elected to undergo the recommended medical procedure.” Id. at 148, 349 N.W.2d at 148. Then, if the telephone company showed this, the jury would be able to reduce the plaintiff’s damages by the failure to mitigate. Id.at 148-149, 349 N.W.2d at 475-476. The Lobermeier case shows that each situation for mitigation of damages depends heavily on the facts of the case. If a reasonable person would have acted differently in order to reduce the damages caused by the defendant, there would be a failure to mitigate.

Therefore, in order to prevent a mitigation of damages argument against you, it is important to follow your doctor’s advice with respect to treatment and avoid aggravation of your injuries. While you are not required to follow your doctor’s advice if the advice is to undergo an unreasonably dangerous surgery or a surgery that may not result in a cure, you may want to consider getting a second doctor’s opinion.

At Murphy & Prachthauser we are car accident attorneys in Milwaukee and personal injury attorneys in Milwaukee who practice the law the way it should be practiced – motivated and equipped to do our best for you. We take pride in being good lawyers who help people. 

If you have a case you would like to speak to a personal injury lawyer about, please contact us to schedule a free consultation and get an experienced Milwaukee auto accident attorneys and Milwaukee personal injury lawyers working on your behalf.

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