Failure to Mitigate: The Costs of Not Following Doctor’s Orders

Most people have a general understanding of the process:  if someone suffers a loss or injury as a result of the negligent actions or carelessness of someone else, the injured or damaged party (known as the “claimant”) can make a claim for financial compensation.

What many don’t realize is that the claimant also holds some responsibilities, not the least of which is referred to as a “duty to mitigate”. In plain language this means that the claimant must do whatever is reasonable to limit or reduce financial and physical losses.

We often hear about the “duty to mitigate” in conjunction with contract and employment disputes.  When someone is injured in a motor vehicle collision, they have the same responsibility.  In injury cases, the claimant must do whatever is reasonable to regain their health, recover from their injuries and to resume their regular life, including returning to work, as soon as possible.  Specifically, this means that a claimant needs to follow the advice of health care providers, including taking certain prescribed medication, participating in physiotherapy and doing ‘stretches’ and “exercises’ at home, attending the gym, and any other reasonable instructions or advice.   Failure to follow a doctor or physiotherapist’s advice may mean that a Judge at trial may reduce damage awards to reflect this failure – in other words – penalize the claimant.

In order to prove that a claimant failed in their responsibility to mitigate their loss, the lawyers for the negligent party (or their insurers), must establish on a “balance of probabilities” or “more likely than not” that if the injured person had followed the recommended treatment, they could have overcome, or in the future could have overcome, the the injury and that the refusal to follow the treatment prescribed was unreasonable.

The recent decision of Madam Justice Kloegman Gregory v. ICBC is a good example of the importance of this responsibility to mitigate.  In this case, a young mother of three had injured her shoulder in a motor vehicle accident.   Her family doctor referred her to an orthopedic specialist who recommended that she have a cortisone injection in the injured shoulder.   The Plaintiff testified at trial that she did not have the injection because she did some internet research that indicated that the treatment could be “risky” and that she was advised by both the ICBC Adjuster and her chiropractor not to have the injection.  Further, an MRI indicated she had a shoulder “tear” and she didn’t believe that the cortisone injection would not “fix” that.   She did not recall whether the cortisone injection was ever discussed with her family doctor.

In her decision, the Judge found that “although not necessarily curative, they [cortisone injections] reduce the inflammation to allow the body to heal the affected area…Sometimes the relief is only temporary but sometimes the injections bring long term benefits”.  The Judge reduced the claimant’s damages for past wage loss, pain and suffering and future wage loss by 10% for failing to undergo the cortisone treatment.

This decision is under appeal, which means that it could be overturned and the claimant may yet receive the additional 10%.  In the mean time,  it reveals the importance that the Court may place on the claimant’s duty to mitigate.  It also serves as a reminder that, particularly in personal injury cases, claimants ought to be cautious when considering treatment options.  They should seek out additional medical advice and consult with their legal counsel when considering going against a physicians treatment recommendation.