Under Texas personal injury laws, you could be entitled to damages if you are injured because of medical malpractice, a car accident, a defective product, a slip and fall accident, or another type of incident caused by another party’s negligence or wrongdoing. However, you have a duty to mitigate your damages. Failing to mitigate damages could result in a lower personal injury settlement.
How Does the Duty To Mitigate Damages Work in a San Antonio Personal Injury Case?
Damages in a personal injury case include economic damages, including lost wages, cost of personal care, out-of-pocket expenses, and medical bills. You can also receive compensation for non-economic damages. These damages compensate you for decreased quality of life, permanent impairments, emotional distress, pain, and suffering.
The duty to mitigate is your legal responsibility to take reasonable measures to prevent incurring damages you can avoid. Reasonable measures are based on the “reasonable person” standard. A reasonable person is someone with ordinary prudence and caution.
Examples of Reasonable Steps To Mitigate Damages in a San Antonio Personal Injury Case
The steps you take after a personal injury or accident to mitigate damages depend on the circumstances in your case. However, some things you can do to protect yourself against allegations of failure to mitigate damages include:
- Seek prompt medical treatment for injuries after the accident
- Follow your doctor’s treatment plan
- Seek a second opinion promptly if you disagree with your doctor’s diagnosis or treatment plan
- Keep all medical appointments, including medical procedures and tests
- Attend and participate in physical and occupational therapy sessions
- Document your steps to improve the healing process
- If your doctor says that you cannot work or places you on light duty, follow the doctor’s instructions
- Do not return to normal activities until your doctor releases you to do so
Allowing an attorney to handle all communications with an insurance company is generally best. It prevents the insurance adjuster from asking leading questions designed to obtain information the company could use against you.
Why Is the Insurance Company Saying I Failed To Mitigate Damage After a Personal Injury?
An insurance company tries to limit liability for a personal injury claim. It prefers to deny the claim if possible, but if not, it will try to undervalue the damages. The goal is to pay as little as possible to resolve the claim.
Alleging you failed to mitigate damages is a way to reduce the value of your injury claim. For example, suppose you were injured in a car accident. Your doctor diagnoses you with a back injury and tells you to restrict activities and stay out of work for two weeks.
However, you decided to continue your normal daily activities, including going to work. While picking up boxes at work, you felt more pain in your back. The doctor examines you and determines you need intensive physical therapy and will be out of work for at least four months.
The insurance company denies your medical bills and lost wages after the initial two weeks you were to be out of work. The company alleges that you would not have incurred those damages had you followed your doctor’s treatment plan.
It refuses to include those amounts in a settlement. Therefore, you either file a personal injury lawsuit or accept responsibility for the denied damages.
In a trial, the defense lawyer argues that there was a failure to mitigate damages. They offer evidence from expert witnesses that your actions increased your damages unnecessarily. If the jury agrees, you could receive much less than your damages are worth.
What Should I Do if an Insurance Company Accuses Me of Failing To Mitigate Damages?
An insurance adjuster might use the term “failure to mitigate damages” to intimidate someone not represented by a personal injury lawyer. The adjuster may pressure the injured victim to accept a lower settlement offer with threats of denying the entire claim.
If an insurance adjuster raises the issue of the duty to mitigate damages, contact our office immediately. Our legal team works with your doctors to determine whether your actions could have made your condition worse. We might work with medical specialists and other expert witnesses to determine the extent of your injuries and damages.
The best way to protect your rights is to have an aggressive attorney on your side to fight the allegations of failure to mitigate damages.
Schedule a Free Consultation With Our San Antonio Personal Injury Lawyers
You deserve to be compensated for every dollar of damages in a personal injury case. Our San Antonio personal injury attorneys at George Salinas Injury Lawyers fight to recover maximum compensation for your personal injury claim. Call our law firm at (210) 225-0909 or fill out our contact form to schedule your free consultation with an experienced injury lawyer in San Antonio, TX.
