Failure to Mitigate Damages in Washington Personal Injury Case

A defendant in a Washington personal injury case may try to limit damages by alleging the plaintiff failed to mitigate damages.  A defendant seeking a failure to mitigate jury instruction must show that the plaintiff acted unreasonably in deciding on treatment when there were alternative options.  The defendant must show through expert testimony that the alternative treatment would more likely than not improve the plaintiff’s condition.  A defendant recently challenged a court’s decision not to instruct the jury on failure to mitigate in an automobile collision case.

According to the appeal court’s opinion, the defendant rear-ended the plaintiff’s vehicle.  The plaintiff went to a chiropractor who found she had a ligament injury as a result of the accident.  The chiropractor also found the injury was permanent.

The plaintiff filed suit and the defendant admitted liability, leaving only damages at issue for trial.  According to the opinion, the plaintiff worked as a licensed practical nurse.  She testified she had talked with her colleagues about her treatment options.  She did not want to take medications that would interfere with her work, or to have surgery or injections.  She testified the chiropractic treatments helped manage her pain.  She also testified that immobilization was no longer recommended and that no one she talked to recommended it to her.

The defense attorney asked the plaintiff’s chiropractor if the plaintiff waited too long to seek treatment.  The chiropractor testified the plaintiff had self-treated with ice, which would have been part of his treatment.  He testified he did not think the plaintiff caused further damage.  The chiropractor testified that immobilization was not an indicated therapy for the plaintiff’s injuries.

The defense expert testified he had found no objective evidence of injury when he examined the plaintiff.  He also testified that immobilization might be an appropriate treatment for a ligament injury and that he would not recommend spinal manipulations for such injuries.

The trial court denied the defense’s request for a jury instruction on failure to mitigate. The trial court explained that the standard was an unreasonable failure to mitigate, and that it could not find the plaintiff’s actions were unreasonable.  The court noted the plaintiff was in the medical field and had discussed her treatment with medical professionals.

The jury found the plaintiff’s damages were $348,000.  The defendant appealed the judgment.

The defendant argued the trial court erred in denying the failure to mitigate instruction. Trial courts must instruct the jury on a party’s theory of the case if there is substantial evidence supporting it.

The appeals court found there was not substantial evidence of a failure to mitigate on the basis of delay in treatment, failure to try immobilization, or treatment exclusive with a chiropractor.   The plaintiff had self-treated with ice and the plaintiff’s chiropractor testified the delay did not contribute to the injury.  The plaintiff testified the chiropractic treatment helped manage her pain.  She also testified about speaking with her colleagues regarding treatment.  She testified as to her reasons for not pursuing surgery, prescription medications, or injections.  The plaintiff testified immobilization was no longer recommended.  Expert testimony did not establish that different treatment would be more likely than not to improve her condition.  In fact, the defendant’s expert testified that there might not be a “fix” because this type of injury can fail to heal.    The defendant did not show the trial court erred in denying the request for the failure to mitigate instruction.

As this case shows, the defendant has the burden of proving the injured person failed to mitigate damages.  An injured person is not required to choose a particular course of treatment, but must simply act reasonably.  If you have been injured by someone else’s negligence, an experienced Washington personal injury attorney can help you recover for your injuries.  Call Blair and Kim, PLLC, at (206) 622-6562 to schedule a consultation.

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