In personal injury cases, a plaintiff is not entitled to recover damages for harm that a defendant proves the plaintiff could have avoided with reasonable effort.  This concept is known as the plaintiff’s duty to mitigate damages.  The rule of law is stated in the standard jury instruction on the topic “Mitigation of Damages,” found in the Judicial Council of California’s Civil Jury Instructions (CACI) No. 3930.  While the burden of proving a defendant’s negligence and the extent of injury is on the plaintiff (by a “more likely than not” standard of proof), the burden of proving that plaintiff failed to act reasonably to limit (mitigate) his damages is on the defendant (by the same “more likely than not” standard of proof).  This becomes important in cases in which a plaintiff’s treating doctors have recommended a certain course of treatment, but a plaintiff chooses not to follow that recommendation.  The defense can then request a jury instruction from the court on the plaintiff’s failure to mitigate his/her damages, seeking to limit the amount defendant would have to pay to the plaintiff.

A person may have legitimate reasons for not following a doctor’s proposed recommendation, such as inability to afford the treatment (the majority of personal Chapter 7 bankruptcies in the United States are due to overwhelming medical expenses), or a reasonable concern about a particular course of treatment.  The word “reasonable” is crucial here; the defendant still has the burden of showing that the plaintiff’s decision to decline recommended treatment was unreasonable in the circumstances.  For a plaintiff to not follow through with recommended treatment is to hand the defense an argument that they wouldn’t have at trial otherwise – – they can shift the discussion to what the plaintiff failed to do, changing the focus from the defendant’s careless conduct.

We always stress to clients the importance of compliance with a doctor’s recommendations, completion of courses of therapy, and making all reasonable efforts to limit the amount of damages they have incurred, in order to prevent the defense from being able to argue a failure to mitigate damages.  There will always be some situations in which proposed care is unaffordable or there are legitimate differences of medical opinion about which course of treatment is appropriate (hence the notion of getting a “second opinion” regarding medical care is accepted within the medical profession), but in the majority of cases, not following a doctor’s recommendations is a good way for a plaintiff to undermine his/her damage claims at trial.

The attorneys at Janssen Malloy LLP have years of experience in preparing cases for presentation at trial, and assisting clients in navigating the various evidence rules and jury instructions that can make or break their cases.  Our attorneys stand ready to assist you or your loved ones when the need arises.