Go to navigation Go to content
Toll-Free: 888.716.8021
Phone: 208.344.5555
Morton Law Offices, Chartered

3 Tips to Help You Avoid the Claim that You Failed to Mitigate Your Damages

Following the treatment plan of your doctor or other healthcare professional is not only an important step in your recovery from your injury or occupational illness, but it is also essential in obtaining compensation from the responsible party.

The other party’s insurance claim representative is charged with the duty to do whatever they can to avoid paying you the full value for your injuries caused by the their insured. One way they hope to accomplish that task is to argue that you failed to mitigate your damages.


Every party that has a claim for bodily injury or that files a lawsuit is charged with the duty under the law to reduce and not augment the amount of damages they incur if given the opportunity and ability to do so. In fact, failure to do so is called failure to mitigate damages. The failure to mitigate damages constitutes an affirmative defense. An affirmative defense provides a defendant with an argument at trial that the plaintiff shouldn't be awarded all of the damages requested arising from the accident, because not all of the damages alleged by the plaintiff are the result of the defendant's fault in light of the plaintiff's failure to take action that would have reduced rather than augmented the injuries or damages arising from an accident.  In summary, the defendant will assert that part of the damages in your case are due to your failure to accept personal responsibility for failing to take reasonable steps to avoid increasing the amont of damages you are seeking in your claim or lawsuit.


When a person submits a claim to an insurance company for damages allegedly arising from a bodily injury, that insurance company is going to evaluate the claim in terms of how they can avoid having to pay the plaintiff the full value of the claim.

One way an insurance company can escape having to pay the full value of the claim is to establish that you failed to reduce the value of your damages when given the opportunity and ability to do so thus allowing the court to reduce a verdict rendered following a trial. Failing to mitigate one’s injuries can result in the plaintiff unwittingly reducing the other insurance company’s responsibility for paying you the money you would otherwise be entitled to receive.


After you visit with a physician following an accident, the doctor will render a diagnosis. A diagnosis is simply an opinion by doctor as to what the nature of your medical problem is and along with that an opinion as to what the cause of the problem is is so that the doctor can determine the appropriate plan to treat your injury. Once a doctor renders a diagnosis, the doctor will create a treatment plan for you to follow to help you get on the road to recovery.

The treatment plan can involve any number of recommendations including surgery, the taking of medicine (both from the pharmacy or over-the counter), bed rest, physical therapy, home exercises, chiropractic treatmentss or any number of other modalities. The treatment plan is the doctor’s plan to help you bet better and heal the diagnosed condition if possible. However, not all diagnoses are curable, but the best chance you have for full recovery is in most cases based upon your ability to follow the advice and treatment plan of your physician.

Here is a list of the things that claim representatives look for to determine if a plaintiff's claim should be reduced, because the plaintiff failured to mitigate the plaintiff's damages in any given claim, namely:

1. Did you fail to attend any of your scheduled sessions with your healthcare providers? This would include failing to go to your scheduled appointments with your doctor, physical therapist, chiropractor other healthcare professional.

2.  Did you fail to take any of the prescribed medication or over-the-counter medication in the time and amount prescribed by your treating physician?  And,

3.  Did you fail to perform your home exercises as prescribed by your physician or physical therapist?

In most depositions I have attended over the past three (3) decades, I have observed that a learned defense attorney will ask a plaintiff to answer questions as to what, if any, exercises you are performing at home to help alleviate your pain. This would include, of course, your stretching exercises provided by your physician or physical therapist that are designed to help you alleviate your pain or to help strengthen or relax your muscles. The defense attorney will also inquire as to how often you performed the home exercises and compare that with the recommendations and treatment plan given by your doctor or physical therapist with the objective to show that you failed to comply with the instructions given thereby suggesting to the court that you failed to mitigate your damages for your failure to abide by your healthcare professional's treatment plan.

Accepting personal responsibility is a central theme in any lawsuit. It comes with a double edge sword. It is a theme that plaintiff’s attorneys use justifying why the jury should award their client a certain dollar amount of compensation for the injuries that their client allegedly incurred as a result of an accident.  It will be one of the central themes argued by your attorney that the reason that "we" are here at trial is due to the fact that the defendant is trying to avoid personal responsibility for those injuries and damages caused by the defendant’s negligence or responsibility.

On the other hand, a defense attorney will argue in most cases that not all of your injuries and damages are due to his or her client’s fault, because you failed in some way to mitigate your damages by refusing to follow the treatment plan of your physician. The clever defense attorney may highlight each and every date you failed to keep a scheduled appointment or failed to take your medicine as directed or failed to do your home exercises which you were supposed to do as prescribed by your doctor and as a result of said failure, your condition isn't as good as it could have been due in part to your failure to follow the advice of your doctor.  

Hence, it is important to follow the treatment plan of your healthcare providers in order to avoid the defendant's claim that you failed to mitigate your damages.

Meeting with an experienced trial attorney as you are going through your treatment can help educate you on how you can document your progress (or lack thereof) through the course of your treatment and help you avoid the pitfalls associated with the claim asserted by the defense that you failed to mitigate your damages.

Alan Morton
Advocate for Justice/Trial Lawyer