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The Failure to Mitigate Defense

Jed Dietrich, Esq., Distinguished as an American Institute of Trial Lawyers Litigator of the Year, and His Elite Team of Attorneys at the Dietrich Law Firm P.C., Acclaimed as an American Institute of Personal Injury Attorneys 10 Best Personal Injury Law Firm, Battle to Obtain the Best Result for Victims Severely Injured in Accidents in Buffalo, New York.


Risk mitigationEven relatively minor accidents can lead to life-shattering injuries, permanent disabilities, severe emotional torment, and financial troubles. It is often extremely difficult for victims of serious accidents to recover and get their lives back together. To complicate matters even further, the slightest oversight could considerably impact a victim’s right to obtain sufficient compensation. The importance of retaining a competent and highly experienced personal injury lawyer cannot be stressed enough. Pursuing a claim against the responsible party may be the only way to recover adequate compensation and start rebuilding everything you lost.

If your accident and resulting injuries resulted from another’s negligence, it is imperative to consult with a knowledgeable personal injury attorney as soon as possible. Every accident victim must take all reasonable measures to minimize the consequences of their injuries and prevent further damages. Under the rule of mitigation of damages, a plaintiff can be denied part of their monetary compensation if the court finds that the damages could have been reasonably avoided. A plaintiff’s legal duty is to act in the same manner that an ordinary, reasonable person would have under the same or similar circumstances. Additionally, an injured victim is required to act in good faith and with due diligence in the performance of reasonable judgment and ordinary care when obtaining medical treatment and seeking alternative employment. If you are interested in learning more about your responsibilities as a plaintiff, you should contact the Dietrich Law Firm P.C. today. Our expert lawyers will be able to answer any inquiries you may have and recommend how to proceed.

Since 1999, Jed Dietrich, Esq., an acclaimed member of the Million Dollar Advocates Forum, has exclusively handled serious personal injury cases. Jed Dietrich, Esq. has battled to obtain over $175 Million in verdicts and settlements for victims who were injured in Buffalo, New York, and beyond. Our honorable commitment to exceeding your expectations and delivering an exceptional outcome is what sets us apart from the competition. The Dietrich Law Firm P.C.’s veteran team offers complimentary lawsuit evaluations and consultations. We would be honored to speak with you about your accident claim. Our seasoned attorneys are available 24 hours a day, 7 days a week, at (716) 839-3939 or by filling out the online consultation form.

Common Triggers of the Failure to Mitigate Defense

A defendant in a personal injury lawsuit will generally attempt to decrease the compensation that the plaintiff can recover by demonstrating that the plaintiff failed to take reasonable steps to mitigate his or her damages following the accident. Some common situations that the failure to mitigate defense arises include:

    Failure to Seek Medical Care
  • Failure to Seek Medical Care: An accident victim’s failure to be treated by a physician promptly or without delay for injuries that a reasonable individual would consider needed medical attention can reduce his or her potential compensation. Delays in proper medical care can exacerbate certain types of injuries. Defense attorneys often claim that a victim’s injuries were not serious enough to seek a doctor or even that the injuries did not result from the accident. When the nature of an injury is obvious, the victim should seek treatment in a reasonably timely manner, or damages may not be permitted if the delay contributed to further harm.
  • Failure to Seek Employment: Some accident victims suffer injuries that are serious enough to preclude them from working in their actual occupations. Nevertheless, accident victims might be able to obtain other types of employment. If victims can perform other jobs and such work is available, the duty to mitigate involves seeking gainful employment. If the defense can show that the victim refused to apply or interview for such jobs, damages for lost time from work may be reduced. Thus, when plaintiffs are capable of finding reasonable employment, they must do so.
  • Choosing Not to Undergo Surgery: Sometimes, doctors recommend accident victims to get surgery to treat their injuries. Nevertheless, injured individuals may forgo the surgery. Defense attorneys may assert failure to mitigate if the consequences of the victim’s injury could have been significantly minimized or even avoided with the operation. Further, if the permanence of an injury could have been avoided by agreeing to surgery that a reasonable person would have agreed to under similar circumstances, the plaintiff will be precluded from demanding damages for the permanent injury.
  • Disregarding Medical Advice: Doctors and other care providers often give injured patients medical advice and recommend particular treatments. When patients disregard their doctor’s advice or refuse recommended treatments, damages associated with all conditions that persisted or developed due to failure to follow such advice may be reduced. If the defense attorney can show that a reasonably prudent individual would have followed the doctor’s advice and disregard for the advice led to worsening or lack of improvement of the injury, the victim’s compensation may be reduced.

WERE YOU, OR A LOVED ONE, SEVERELY INJURED IN AN ACCIDENT BECAUSE OF ANOTHER’S NEGLIGENCE IN BUFFALO, NIAGARA FALLS, ROCHESTER, OR OTHER PARTS OF NEW YORK STATE?

CALL JED DIETRICH, ESQ. AND HIS TOP RATED AND HIGHLY EXPERIENCED TEAM OF BUFFALO, NEW YORK PERSONAL INJURY ATTORNEYS AT (716) 839-3939 NOW TO OBTAIN THE HELP THAT YOU DESERVE!

Successfully Overcoming Failure to Mitigate Accusations

The Dietrich Law Firm P.C.’s elite team possesses the knowledge and expertise necessary to defeat all possible failure to mitigate defenses and ensure that you are in a position to obtain the highest possible recovery for your injuries. Some successful counters to this defense include:

  • Counters Related to Not Seeking Medical Treatment: Our battle-tested attorneys recognize that when accident victims suffer injuries, they often experience adrenaline rushes, which can prevent them from feeling pain. Delays in seeking medical care might be reasonable if the injury did not seem severe. For example, victims might not even feel certain types of wounds, such as internal injuries. Additionally, it is reasonable for optimists to assume they will feel better soon, which might cause them to endure the pain for a few days before finally going to the hospital.
  • Overcoming Failure to Seek Employment: Defense lawyers must be able to show that a doctor cleared the plaintiff to return to work. Even if cleared by a doctor, it does not mean that the victim was emotionally or psychologically ready to begin working. Our veteran lawyers recommend that accident victims, who are able physically and mentally able to handle suitable replacement employment to keep a record of all their job applications and interviews. This will make it difficult for the defense to claim the victim did not look for work.
  • Motives for Disregarding Medical / Surgery Recommendations: The rise of alternative treatments, such as chiropractic, acupuncture, homeopathic and holistic remedies, and home therapies are increasingly being employed by injured individuals. Sometimes, victims get second opinions from other doctors, and we can show conflicting treatment approaches. When proposed surgeries and other treatments involve significant risks of further injury or death, our seasoned lawyers will argue reasonable individuals would have refused such treatments too. Operations that are not routine are not required. The probability that the treatment would have healed the injury must also be considered. In some cases, our medical experts can argue that the recommended operation or treatment would not have avoided the permanent consequences of foregoing the surgery.

Personal injury cases can be especially challenging when the defense accuses a victim of failing to mitigate damages. However, it does not have to be for you when you have the Dietrich Law Firm P.C.’s battle-tested team fighting on your side. Our highly experienced lawyers have a long history of obtaining justice for victims of devastating accidents and know how to counter any potential defenses. The Dietrich Law Firm P.C., distinguished as a Best Law Firm of America, is determined, disciplined, and dedicated to obtaining the best possible results for those injured in accidents in Buffalo, New York; Rochester, New York; Niagara Falls, New York; throughout New York State and beyond. Call Jed Dietrich, Esq., recognized as an Attorney and Practice Magazine’s Top 10 Personal Injury Attorney, and his elite team of personal injury accident lawyers today at (716) 839-3939 so that we can help you!


Call the Dietrich Law Firm P.C. immediately at (716) 839-3939 so that our aggressive, tenacious and hardworking personal injury lawyers can fight to obtain the best result for your personal injury claim in Buffalo, New York. We are available 24 hours a day, 7 days a week, and there is never a fee until we WIN for you!

Client Reviews
★★★★★
I am a medical doctor and have worked with many of the best lawyers in Buffalo and I can say without question that Jed Dietrich is the only lawyer I would trust with my injury case in Buffalo New York. B.O.
★★★★★
Dogged, Determined, and Dead-set on getting you the Maximum settlement for your injuries! T.F.
★★★★★
No one will work harder, smarter or better; I have retained Jed and he obtained the best result for my case. D.P.
★★★★★
The definition of an "A" type personality-exactly who I would want to represent me in a serious personal injury case. E.S.
★★★★★
Jed is a Master in the courtroom without an equal. S.C.
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