Not Following Your Doctor’s Recommendations? It May Affect More Than Just Your Health

Following an accident, injured parties often have to make big decisions related to their health. Whether it is proceeding with surgery, or taking medication, there are many considerations. The decisions plaintiffs make with respect to their health have a direct impact on their personal injury lawsuit.

An injured party in a lawsuit has a duty to mitigate his or her damages. The “duty to mitigate” is the principle that a plaintiff should take reasonable steps to avoid his or her losses. In a personal injury claim, a plaintiff is expected to take reasonable steps to improve the condition he or she is in by following the recommendations of healthcare providers.

Many court decisions have said that an injured party who is fully competent yet arbitrarily refuses to receive treatment cannot force the defendant to bear the costs of that choice. As a result, the plaintiff is not entitled to be compensated for losses that could have been avoided by taking reasonable steps, such as undergoing surgery or participating in recommended medical treatment.

However, it should be noted that a defendant is not automatically entitled to a reduction if a plaintiff fails to follow medical advice. First, a plaintiff is not expected to follow all treatment recommendations. Second, there is no failure to mitigate if the plaintiff’s injury and impairments would be the same regardless if the treatment was completed or not.

On the other hand, if a plaintiff is repeatedly ignoring medical advice, the defendant can argue that the plaintiff failed to mitigate his or her damages. In such circumstances, the defendant must prove (1) the plaintiff acted unreasonably in avoiding the recommended treatment and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he or she acted reasonably.

If you are involved in a personal injury lawsuit, following your doctor’s advice benefits both your health and your claim.

About the Authors

Merella is committed to advocating on behalf of people who have suffered serious personal injuries. She understands that the complexity of the insurance system can be intimidating for clients, and wants to make the process as easy as possible for them. Merella first joined Oatley Vigmond as an articling student in 2017, becoming an associate after being called to the bar in 2018. Merella obtained her law degree from the University of Windsor and an Honours B.A. in Philosophy and Criminology from York University. In her spare time, Merella enjoys exercising, travelling, and reading. Merella is fluent in Arabic.

To learn more about Merella, please click here.