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What Does The Defense Mean When They Say I Failed To Mitigate Damages?

When a personal injury occurs in New Orleans, the injured person has a duty to take reasonable steps to minimize the consequences of that injury.  Mitigation of damages is the legal term used to describe this obligation.  If an injured person does not take appropriate steps to mitigate damages, the amount he or she is awarded in a personal injury lawsuit may be reduced.

If a defendant argues that the injured person has failed to mitigate damages, the burden is on that defendant to prove it.  Whether the plaintiff has used reasonable care is analyzed by the judge or jury based on the specific circumstances surrounding the case.  Factors that may be considered include the length of time the plaintiff waited to seek treatment, action, knowledge, opportunity, potential exposure to further loss and the expense required to avoid a reasonably foreseeable loss.

If you have suffered a personal injury, you should be aware that any unreasonable refusal to submit to medical treatment recommended by a competent medical authority might be seen as a failure to mitigate damages. When determining the reasonableness of a plaintiff’s refusal to submit to specific medical treatment, the judge or jury weighs the risk and expense of the treatment against the likelihood of success.

When an injured person is found to have unreasonably refused medical treatment is, he or she is not entitled to recover for any aggravation of the initial medical condition arising from this refusal.

If you have been receiving medical treatment for a personal injury and have any questions regarding this topic, please feel free to call our office at 504-581-6411 or 855-GERTLER.