YOU AND THE LAW® PLAINTIFFS SHOULD FOLLOW MEDICAL ADVICE
If you’re hurt in an accident, you must take reasonable steps to “mitigate” (minimize) your losses. You can’t get “damages” (compensation) for losses caused by your own neglect. So if you ignored medical advice, and would have gotten much better and more quickly if you had followed your doctor’s recommendations, your compensation may be reduced. For example, the plaintiff in one case chose naturopathic remedies instead of the injections and surgery recommended by three orthopedic surgeons for her injured shoulder. The court cut her damages by 30% for her failure to mitigate. But the defence must prove that your failure to follow the recommended treatment meant you didn’t get better as fully or quickly as you could have. Take the case of a plaintiff who suffered herniated discs in his back when he was rear-ended. The defence argued he failed to mitigate by not continuing to take physiotherapy, massage therapy, kinesiology or acupuncture three months after the accident, as recommended. They also argued he should have hired a personal trainer or followed a structured exercise program. But the plaintiff did see a chiropractor regularly, bought a new mattress for his back (and a home gym and gravity extensiontable),didexercisesathome,andtookprescription and herbal medication. Our B.C. appeal court decided the defence hadn’t proved his “less than full compliance with medical recommendations would have made any difference to his continuing disability.” So his damages (over $170,000) were not reduced. Can you stop the recommended medical treatment because you can’t afford it? An active 30-year-old apprentice plumber hurt his neck and back when rear-ended. For 18 months, he regularly
saw a physiotherapist, massage therapist and chiropractor and went to the gym almost daily. He was starting to feel stronger and better. Then the defence insurance company stopped paying for his rehabilitation. He only earned about $30,000 a year and couldn’t afford treatment on his own. Four years after the accident, he still took narcotic painkillers for headaches and couldn’t ski, hike, hunt, camp or do yard work as before. The defence argued he didn’t mitigate his losses and his damages should be reduced. The BC Supreme Court said, however, that whether a plaintiff has taken reasonable steps to minimize their losses depends on all the circumstances, including financial circumstances. This wasn’t a case where the plaintiff refused to follow medical advice. Indeed, the plaintiff saved for an annual gym membership and, two years after the accident, returned to the gym and lost weight. When his income increased, he also returned to massage therapy. The court decided he didn’t act unreasonably in determining how best to try and pay for the treatments that had helped him, but which ICBC was no longer paying for. His total damages of over $400,000 weren’t cut as a result. If you’re hurt in an accident and entitled to damages, a lawyer can help protect your rights and obtain the best compensation for you.
This column provides information only and must not be relied on for legal advice. Please call Stephen W. Turner at 250-868-8801 for your free, no obligation, initial consultation.
Written by Janice and George Mucalov, LL.B.s with contribution by Stephen W. Turner. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trademark. © Janice and George Mucalov