I injured my knee in a car accident. The doctor is recommending surgery for the knee, but I am afraid of surgery. Does my choice to treat an injury affect any personal injury damages case I may have?
Yes, your treatment choices for your injuries may affect your recovery in a personal injury case. As the injured party, you have a duty to mitigate your damages. In other words, you have a duty to follow a doctor’s advice. You have to undergo procedures and take medicine to cure your injuries. If you do not follow a doctor’s advice and that recalcitrance results in a permanent injury that could have been avoided, then the jury will not make an award based on an injury that could have been avoided. Bell v Shopwell, Inc., 119 AD2d 715, 501 NYS2d 129 (2d Dept 1986).
However, an injured party does not have to follow medical advice. Fafard v Ajamian, 60 AD2d 853, 400 NYS2d 856 (2d Dept 1978). Whether it was reasonable to follow medical advice would be up to a jury to decide. For example, if a person does not have adequate insurance to cover the cost of the procedure and cannot afford the operation, the jury cannot hold that against the injured party. Or, a certain procedure may have risks which could outweigh any possible benefits. The injured party is not required to take chances to cure an injury with an operation that could make his life worse.
Burden of Proof
Mitigating damages is an affirmative defense. That means the burden of proof is on the party you are suing for personal injuries to prove you acted unreasonably by refusing treatment. Cornell v T. V. Development Corp., 17 NY2d 69, 268 NYS2d 29, 215 NE2d 349 (1966).
Religious Exception
The court may also consider religious beliefs. For example, if your religious beliefs prevent you from receiving a transfusion, then the jury will consider those beliefs in light of refusing medical treatment. Williams v Bright, 230 AD2d 548, 658 NYS2d 910 (1st Dept 1997).
By James Santner, Esq.
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