On the Scope of the Duty to Mitigate in the Context of a Personal Injury

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If a personal injury plaintiffs reject medical care, can they sue tortfeasors for their injuries, including their pain and suffering?

If personal injury plaintiffs sue tortfeasors for their injuries, do they have to run their medical treatment plans past the tortfeasors to get their ok as a prerequisite to recovering their medical costs from the tortfeasors?

In Fick v. Edwards, Mr. Herbert Fick sued Mr. Edwards for injuries that Mr. Fick sustained in a bike accident, allegedly caused by Mr. Edwards’ negligence.

After the accident, Mr. Fick refused pain medication. Then Mr. Fick sought to hold Mr. Edwards financially responsible for his pain and suffering. Does that seem right?

The district court allowed Mr. Fick’s claim for pain and suffering to go forward, experts testified as to the various treatment options Mr. Fick faced, the jury awarded Mr. Fick $175,000 for his past pain and suffering, and the Minnesota Court of Appeals affirmed the award this week.

As in so much civil litigation, the question boils down to “reasonableness.”

“A Plaintiff has a duty to mitigate damages by acting reasonably in obtaining treatment for her injury.”

The jury heard evidence about the possible avenues of treatment, their respective success rates and side effects, and Fick’s reasons for choosing not to pursue those treatments. On this record, Fick presented sufficient evidence to permit the jury to find his treatment strategies were reasonable despite the availability of other treatment options.

This nebulous standard — reasonableness — underlies a great deal of U.S. contract and tort law. It has the obvious benefit of contextualization and flexibility. It has the equally obvious downside of significant uncertainty. While it is expensive to have a vague rule like this, even the ultimate goals of fairness and justice (concepts that are also obviously nebulous), it is hard to imagine a better way.