NERD ALERT!!! NERD ALERT!!! NERD ALERT!!! NERD ALERT!!!
This is one of Brendan’s favorite topics and he’s gonna nerd-out!
As you recover from your injuries, please understand that New Mexico law requires that you MITIGATE your damages. The law provides as follows:
In fixing the amount of money which will reasonably and fairly compensate plaintiff, you are to consider that an injured person must exercise ordinary care to minimize or lessen his or her damages. Damages caused by his or her failure to exercise such care cannot be recovered. UJI 13-1811 NMRA.
When you pursue a personal injury claim, you must use ordinary care to mitigate damages. Mitchell v. Jones, 47 N.M. 169, 138 P.2d 522 (1943), citing 15 Am. Jur., Damages §§ 27 and 36 (see now 22 Am. Jur. 2d Damages §§ 30, 32, 38, 39). A person injured by a negligent act is not entitled to damages for loss that could have been avoided by ordinary care. Rutledge v. Johnson, 81 N.M. 217, 465 P.2d 274 (1970).
If you are hurt due to another person’s negligence, you must obtain medical attention and act to recuperate from your injuries by using reasonable measures to prevent aggravation and to effect a cure. Substantial authority requires an injured person to submit to surgery or medical treatment to minimize damages arising from a third-party’s negligent act. 62 A.L.R.3d 9, 70.
A claimant’s award should exclude sums for physical or mental pain and suffering or loss of earnings caused by failure to reasonably care for injuries sustained due to failure to consult a doctor, failure to follow a doctor’s advice, failure to promptly see a doctor or to otherwise care for injuries. Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444 (Tex. 1967).
In a nutshell, if somebody’s negligence caused you damage, you must try to get better in the shortest amount of time possible. You must follow the advice of your medical providers regarding medical care, treatment, medication, restrictions on your activities, and occupational /speech /physical therapy ordered by a medical provider.
You do not, however, have to submit to each and every one of a medical provider’s suggestions. You have the right to refuse medical advice on religious grounds. You also have the right to refuse medical care provided that you have a reasonable basis for refusal.
As an example, if my doctor suggests arthroscopic surgery to repair cartilage in my wrist, I can refuse that care if my religion forbids me from using blood products. If I think the risks of the procedure (anesthesia, infection, pain, etc.) outweigh the likely benefits of the procedure then I may have a reasonable basis to refuse the procedure.
If you think that you have a reasonable basis to refuse care please consult your personal injury lawyer to explore whether you can reasonably refuse the care.
Failure to mitigate may also arise from excessive, unnecessary, or unconventional treatment. For instance, if you are rear-ended you may reasonably seek emergent medical care, diagnostic imaging, massage therapy, chiropractic care, and painkillers as you recover from your injuries.
But if the care is excessive then the opposition may avoid compensating for excessive care. The opposition may paint chiropractic care, massage therapy, and acupuncture as excessive and unnecessary.
Juries and insurance companies are especially suspicious of chiropractic care.
New Mexico law, however, allows you to receive such care and other care that is medically recognized as long as the care received is reasonable and not excessive.
If a medical provider suggests that you use and/or install grab bars, a handrail, crutches, a wheelchair, or some other equipment, then you have a duty to obtain, install, and use such equipment.
Since you can recover money to reimburse you for such expenses, keep your receipts and provide them to your personal injury attorney.
If you develop additional injuries or conditions as a result of the proper use of such equipment, you might recover money for the medical-equipment-caused injuries.
If, for example, you are told to use crutches and as a result develop a torn rotator cuff, then you might be able to recover money for treatment of the rotator cuff injury.
If you do not use medical equipment that you were told to use and you suffer additional injury as a result, you cannot recover money for the additional injury. If, for example, you are ordered to use crutches, fail to use them, and as a result fall and tear your rotator cuff, then you probably won’t recover money for the shoulder injury.
The opposition may also argue that you caused additional injury or recuperated slowly due to delays in obtaining your medical care or gaps in the medical care you receive. If your condition worsens before you seek treatment, the opposition may argue a failure to mitigate damages where additional harm or injuries resulted from the delay in treatment. Similarly, if you have significant gaps in treatment the opposition may claim that you either sought health care to make your case look better or because you had a later, second, unrelated injuring event.
When you present to a medical provider for treatment, you have a duty to mitigate damages by using your personal means and insurance to pay for your care. If, for example, a car wreck causes you to seek health care, then use your auto insurance’s Medical Payments coverage as your primary means to pay for it. If you exhaust your Medical Payments coverage or if you do not have medical payments coverage, then use your health insurance, a Medicare card, or coverage available to you through the Veteran’s Administration or the Indian Health Services.
If you recover money from a negligent person who caused you to seek medical care, the law requires that you reimburse the insurer or entity that paid for your injury-related care.
The law requires that my law firm reimburse insurers by withholding the sums required to reimburse the insurers that paid for your care.
My law firm can negotiate the reimbursement with some insurers, but the federal government and some forms of private insurance will receive every penny paid for your medical care.
For that reason, please refrain from incurring economic obligations –- i.e. buying new merchandise, cars, making vacation plans, etc. -– on the expectation of receiving a settlement check.
If you do not have insurance to pay for your health care, then you should use your personal resources to pay for the care required for your injuries. If you do not have personal resources, then some medical providers will treat you under a “Letter of Protection.”
A “Letter of Protection” requires that your personal injury attorney write a letter to a medical provider in which the attorney promises that if you recover money from a tortfeasor, the attorney will protect the medical provider’s interest and reimburse the medical provider before the attorney distributes any money to you.
Some “Letter of Protection” medical providers will negotiate the sum owed to them, but they are not required to do so.
You are legally obligated to pay a medical provider rendering care under a letter of protection even if you do not recover any money. If you do not recover money for your injuries, a medical provider that treated you under a Letter of Protection could refer your account to a collections agency and/or sue you for the sum owed.
Many law firms discourage clients from obtaining care under a Letter of Protection. If you are injured and you have no other option, though, you should schedule an appointment with your personal injury attorney.
To further mitigate your damages, you should pay copayments and medical bills as you incur and receive such charges and bills. If you recover money from the jerk who caused you injury — a person we fancy lawyers call a “tortfeasor” — the law requires that your attorney pay any sums due to your medical providers before distributing money to you.
With very few exceptions, medical providers will not negotiate the sum owed for your medical care. If you do not pay the medical expenses as incurred, the medical provider may refer your account to a collection agency and they could sue you for the sum owed. Some medical providers might even terminate their doctor-patient relationship with you if the sum you owe becomes excessive.
Your claims for damages may also involve economic damages, including but not limited to claims for lost wages or loss of household services. If you can work, then you should obtain employment within the restrictions set by your injury-related medical providers. If you disagree with your medical provider about whether or not you can return to work, then you should still try to work.
Although you may seek a second opinion as to whether you should continue working and/or whether you have any restrictions as to the type of work you can perform, beware that obtaining a second opinion may result in a battle of medical experts which can increase the cost of litigation that you are obligated to pay.
Similarly, if your injuries prevent you from doing household chores, you can recover for your inability to perform household services. But if a relative, friend, or neighbor offers to perform household services at no cost to you or at low-cost to you, you should accept their offer as it serves as one way to mitigate damages.
And if your medical provider says that you can perform all household services, you will probably not recover for loss of household services. Keep track of any loss of household services, any assistance you obtain, and any sum you pay for someone to perform household services as you can recover money for it.
Most lawyers will work with clients to mitigate damages. Lawyers do this for several reasons, including but not limited to the following. First, to ensure that you recover from your injuries. Second, to ensure that you can recover money for your injuries and damages. Finally, to minimize both the sum that you must reimburse to health insurers / medical providers and to your attorney for litigation costs.
If your medical care is excessive, involves multiple medical providers from whom an attorney must request medical records and whom the attorney must depose, and requires that the attorney hire experts from multiple modalities it will significantly increase the sums you must reimburse to insurers / medical providers and to your personal injury attorney.
Though medical expenses and lost wages are the most common subjects of mitigation, there are a number of other areas of damages that must be mitigated. If the court finds that you failed to mitigate damages, the court can reduce your award of damages by the amount of unnecessary expenses or losses.
As a lawyer, I can promise only one thing:
Nobody gets rich by pursuing a personal injury claim.
At most, the law permits a claimant to obtain enough money to pay for medical care, lost wages, lost earning capacity, legal fees, and to compensate for pain and suffering and loss of enjoyment of life.
Your personal injury attorney will do everything possible to maximize the amount of money you can recover, but you must mitigate your damages in order to help your attorney do that.
If you are my client in a personal injury claim, please consult periodically with me so that we may ensure that the medical care you receive is reasonable, recoverable, timely, and non-excessive. Please also consult with me periodically regarding your duty to mitigate other damages.
If I represent you in another capacity or if you are a former client, I hope you never need my services as a personal injury lawyer. But if you do get hurt and you need a personal injury attorney, please consider hiring me to advocate for you.