When you want to pursue a personal injury claim, there are a number of important steps you are required to take. For example, you will need to have proof that the incident occurred (usually in the form of an accident report), and you will need to have proof of your injuries (usually in the form of clinical notes and records from a physician). Getting treatment for your injuries is one of the most important steps in a personal injury claim. Doctors will make notes on your injuries, how severe they are, and what treatments you may need, including referrals to specialists or other healthcare professionals. But what happens if you choose not to follow the advice you are given regarding treatment?
Mitigating your losses with Treatment
Mitigation is an important legal principle, especially in personal injury cases. Injured parties are expected to take reasonable steps and make reasonable efforts to minimize the impact of their loss as a result of their injuries. When you make a personal injury claim, you will be asked by the other party to provide proof of your injuries. This includes your medical records and any other records for treatments, including physiotherapy charts, massage therapy charts, chiropractor records, and any other relevant records.
If you do not follow through with your treatments or take steps to recover, your damages may be reduced for a failure to mitigate. It is not a hard and fast rule that your damages will always be reduced but there is the possibility, depending on the circumstances and the facts of the case, that the damages may be reduced.
In a Court of Queen’s Bench decision from last year, the court ruled on whether or not the injured party was entitled to damages. The plaintiff was sitting in her vehicle in the parking lot of a shopping centre in Calgary. She had an appointment but was early for it, so she decided to read a book in her vehicle while seated with her back against the driver’s door and her legs extended over the driver’s front seat and over the front passenger’s seat. Her seatbelt was not on and neither was the engine.
The plaintiff’s vehicle was hit by another vehicle, and at the time of impact, the plaintiff was swinging her right leg off the front seat to place it into the footwell under the steering wheel. Her left leg was already down. It was a low impact collision, but the plaintiff’s body was twisted as she was returning to a normal position. Initially, she felt no pain other than shock, but she later claimed she was injured from the incident.
At trial, she claimed damages for pain and suffering, loss of enjoyment of life, loss of past income, loss of earning capacity, loss of housekeeping capacity, future care costs, and special damages resulting from the injuries. The court found that she had indeed suffered from chronic pain, anxiety, stress and diminished self-worth as a result of the injuries and was awarded $75,000 for her general damages.
However, the court found that because she failed to follow the advice of her healthcare providers for her treatment, she failed to mitigate her losses. One chiropractor advised the plaintiff to exercise to help pain relief and improve functionality. She was provided exercise programs but refused to do them, and she preferred to do acupuncture treatment and chiropractic treatment. An expert testified that physiotherapy is the “golden rule of orthopedics.” And while pain relief is important, the plaintiff had a duty to mitigate her losses by following the almost “unanimous” advice of the medical professionals to exercise to deal with her injuries. As a result of ignoring this advice, she failed to mitigate her losses.
The court reduced her general damage award by 20% and she received $60,000 as opposed to $75,000.
Don’t Take Chances, Follow Your Medical Professionals Advice
If you are able to pay the costs of recommended treatment, it is best to follow the advice of the medical professionals caring for you. Get your treatments done, go to your appointments and follow up with your doctor. Sometimes symptoms of injuries do not arise until later, or in other cases, there are symptoms that are intermittent and hard to track. Even if you feel fine after the incident, go see your doctor and let them know what happened to you, show them where any impact may have occurred (for example if you were in a motor vehicle accident and your head hit the headrest), or any cuts you may have sustained. Accurate record keeping is important in personal injury claims.
There are some situations where a failure to mitigate your losses by following the advice of your medical professional does not result in a reduction of damages. It will depend on the circumstances of the case. For example, if the plaintiff has a lack of funds and cannot receive further treatment (as not all treatment is covered by Alberta Health Services), the courts may be hesitant to reduce the damages. Not all injured parties are in the same circumstances and therefore the courts will also look at other factors before deciding whether a failure to mitigate warrants a reduction in damages.
If you have been injured in a motor vehicle accident or another type of incident, you might be able to pursue a personal injury claim. To find out what your options are, contact HMC Lawyers today. Our Personal Injury lawyers have the experience and compassion to help you through this difficult time. Call us at 1-800-480-3534 or contact us online to make an appointment today. With offices in Calgary, we represent professionals in Calgary, throughout Alberta, and across Western Canada.