Every victim of a wrongful act has a duty to try to get better.  Not a duty to get better, but a duty to try.  This is called the “duty to mitigate”.  You must act reasonably and sensibly after someone injures you.  This includes following reasonable medical advice.   A wrongdoer is not liable to pay losses which a victim could have avoided by acting reasonably.  If someone stabs you, you have a duty to try to stop the bleeding.

A victim is not required to “try everything”.  And, the defence must prove the plaintiff failed to mitigate.

Failure to mitigate at law must pass the “coulda, shoulda, woulda” test.

It has to be something that the client subjectively could do.  This has an objective component – it’s actually possible.  It also has a subjective component – this specific plaintiff is able to do it.  If the only possible effective treatment would cost a million dollars, and the plaintiff doesn’t have the money – it fails “coulda”.

This “coulda” includes the emotional burden of choosing the treatment.  Deciding to amputate one’s breasts may avoid a familial high risk of breast cancer – how many would have done the same as Angelina Jolie?  Not very many….  The plaintiff can’t be unreasonable, but has a wide discretion.

It has to be something the client should do, on a risk versus benefits analysis.

• It must be recommended by a treater – not a defence expert. Because only treaters have a fiduciary duty of care to the client. Defence hirelings don’t. Especially, it can’t be defence counsel recommending treatment.

• Side-effects matter.

Again, “shoulda” has an objective component (should this generally be tried?).  For example, should all women with a family history of breast cancer have mastectomies at age 40?  Should all men with family histories of prostate cancer have their prostates removed at age 50?

It also has a subjective component (should this particular plaintiff do it?):

• Plaintiff is a Jehovah’s Witness, so any surgery must be “bloodless”. Many surgeons refuse to operate in such cases.

• Orthodox Jews can’t get tattoos, so radiation treatment is more dangerous and less effective (they use tattoos for targeting). Maybe the Rabbi says life is better than orthodoxy, but tell that to my bubbe.

Again, the client cannot be unreasonable, but has a very wide discretion: Imagine a plaintiff gets a rotator cuff injury.  Physical therapy didn’t work.  Next step would be cortisone. BUT: this particular plaintiff has the blood disorder Leiden Factor V Deficiency.   This makes cortisone much more dangerous for her than for a “normal”.  Refusing cortisone is not unreasonable and thus is not failure to mitigate.  Surgery is always risky, so she isn’t required to try that.  The defendant is liable for a permanent injury.

It has to be something that would almost certainly work.  The treatment MUST have a high likelihood of success.  50% plus 1 isn’t good enough.  60% isn’t enough.  Because we can be certain of what we already have (say, shoulder pain).  We can’t be certain of the outcome of treatment.  Being forced to trade certainty for risk requires a high standard.

The “failure to mitigate” defence is raised in nearly every personal injury case.  In practice it almost always fails.  Because most plaintiffs are reasonable.  If there were a good chance that some treatment would help – most people try it.