Failure to Mitigate Damages
However, Nevada law imposes a duty on victims to “mitigate” their damages. This is a key consideration and one you should not overlook. Your failure to mitigate damages could spell disaster for your case. Contact one of the Las Vegas personal injury lawyers at Naqvi to learn more.
Damages in a Personal Injury Case
The amount of compensation you can receive will depend on various circumstances. However, there are common categories of damages that our clients often qualify for:
- Medical bills to treat their injuries
- Wages or income lost while recovering from an accident
- Property damage
- Pain and suffering
When someone suffers permanent disability, they can also qualify for future medical care and diminished earnings capacity. Nevertheless, damages cannot be too speculative.
The Duty to Mitigate Damages
An accident victim has a responsibility to take reasonable steps to prevent their losses from getting worse following an accident. This is a simple enough concept to understand.
Here is a simple example from the property damage context. Imagine a storm blows a tree over and it crashes into your roof. You obviously cannot get the roof fixed immediately. However, you might easily throw a tarp over the hole so that rain does not get into the house and cause more damage in the following weeks. That is an example of mitigating damages. You take certain steps to keep your losses from ballooning.
The same duty applies in personal injury cases. Primarily, a victim should seek prompt medical care so that their injuries do not degenerate or worsen. If a victim fails to do so, then in a real sense they are to blame for some of the harm that they have suffered.
Reasonable Steps to Mitigate Damages
It’s important to point out that the law does not require victims to do everything humanly possible to mitigate their damages. Instead, the law requires only that they take reasonable steps. What’s reasonable is somewhat subjective, but we have a good idea based on past cases.
For example, after a car accident, you should move your car to the side of the road if you can. This helps clear traffic, but it also keeps your car from getting hit by another vehicle and being damaged even further. So long as you can move around and your car will start, you should try to move it to the side of the road. If you fail to, the defendant might claim you failed to mitigate your damages.
Another example was mentioned above: going to the doctor or hospital soon after an accident to obtain treatment. Many medical conditions degenerate over time if left untreated. This is certainly true of back injuries, soft-tissue injuries, and bone fractures. Prompt medical treatment helps uncover what is wrong with you so you can begin treatment.
You also should follow all treatment ordered by your doctor, including any rehabilitation. Many people stop rehab early because it’s not held at a convenient location or because the rehab is too strenuous. But rehab is critical to making as full a recovery as possible. If you do not follow your doctor’s orders in any way, the defendant could claim you failed to mitigate damages.
Affirmative Defense
You will probably first hear of your alleged failure to mitigate damages in the legal pleadings the defendant files in your case. As an affirmative defense, the defendant might plead that you did not take reasonable measures to mitigate your damages.
Once the issue is raised, the defendant must present evidence to support his or her claims. An accusation is not enough. For this reason, you can expect the defendant to ask detailed questions about the doctors you met with following the accident and what you have been doing to recuperate from your injuries. They are digging for information to use against you.
Consequences of Failing to Mitigate Damages
A defendant in a personal injury case is only liable for the damages they cause. If you sprain your back after slipping and falling due to a hazard on the floor, then the property owner is liable for the sprain and any losses that flow from that.
However, if you refuse medical care, your back could get worse. You might even have to undergo surgery to fix nerve damage. Instead of missing three weeks of work to recover, you end up missing three months. Your failure to get medical care has caused even greater losses.
Had you sought prompt treatment, your medical care might have come to $5,000. You also might have lost $1,000 in wages. However, because you delayed treatment, your medical care could cost $50,000 and your lost wages could total $6,000.
In short, a plaintiff’s failure to mitigate damages will result in a smaller financial recovery. Instead of receiving $50,000 for medical bills, they might only receive $5,000 in a settlement or court verdict. You are only hurting yourself by not properly receiving treatment.
How an Attorney Can Help
You might not know what steps to take to mitigate your damages. This is where a personal injury lawyer in Las Vegas is a big help. The law only requires “reasonable steps,” and your obligations are not always clear.
Ultimately, if you end up going to trial, a jury will have to decide if the steps you took were reasonable and if there were any you neglected to do. In our experience, getting prompt medical care and following your doctor’s orders are the big ones. Of course, even if your case settles, failure to mitigate can reduce the settlement amount. An insurance adjuster will probably object if you delayed getting medical treatment or refused to stay in bed as ordered by your doctor.
Let us put our experience to work for you. We can analyze what steps to take to maximize the amount of compensation you receive. For example, in some situations, you might need to ask your employer for accommodation at work, which will allow you to continue to earn income.
Paying for Medical Care to Mitigate Damages
One reason people are hesitant to take certain steps is that they have no money. For example, you might be without health insurance and have very little in your bank account. For this reason, you will have to pay for any medical care you receive immediately following the accident out of your own pocket. Although you can be reimbursed for any money spent—remember, medical bills are damages you can receive compensation for—you still need to pay something upfront to secure treatment.
Nevertheless, your duty to mitigate damages might require that you spend money or pay for care on a credit card. Talk with an attorney to strategize how to receive medical care when you don’t have insurance or any other funds.
Speak with Our Las Vegas Personal Injury Lawyers Today
If you have just suffered an injury in an accident and have questions, we can help. Our teams are prepared to get you the medical care that you need so that you can properly mitigate your damages and maximize your financial well-being following an accident.
Contact our law firm today to learn more. This is a difficult time, and you need a seasoned personal injury lawyer in your corner who is looking out for your best interests. We offer injured victims free consultations to discuss their cases and explain the law.