A Plaintiff’s “Duty to Mitigate Harm”
Published .
The duty to mitigate harm, also called the avoidable-consequences doctrine, means that after a defendant causes an injury or other loss, the plaintiff must use reasonable efforts to prevent avoidable additional harm. It concerns the amount of damages, not whether the defendant was initially at fault. A plaintiff is not required to take steps that are unreasonable, unusually burdensome, or carry a material risk of further injury.
How it works in an injury case
If the defendant’s conduct caused the original injury, a later unreasonable failure to limit its effects may reduce recovery for the additional harm that reasonable care could have prevented. It does not ordinarily erase liability for the original injury. The defendant has the burden of proving that reasonable efforts would have avoided a measurable portion of the claimed loss. The issue is fact-specific and may require medical or vocational expert testimony to connect the plaintiff’s conduct with worsening symptoms, longer recovery, or additional expenses.
Examples
A fact finder may consider whether a plaintiff unreasonably delayed seeking evaluation after serious symptoms appeared; repeatedly missed prescribed therapy without a sound reason where the missed care prolonged functional limits; stopped taking prescribed medication without consulting the treating provider and suffered a proven, avoidable worsening; or failed to make reasonable efforts to return to suitable work after medical clearance when claiming ongoing wage loss. These examples do not establish a failure automatically. The plaintiff’s medical advice, finances, transportation, access to care, symptoms, and other circumstances matter.
A plaintiff generally is not required to undergo surgery or accept treatment that carries meaningful risk simply because a defendant argues it might improve the condition. In Hopkins v. Silber, the court upheld a mitigation instruction where testimony supported that corrective surgery could improve the plaintiff’s condition, but also recognized that the evidence must support the instruction. 141 Md. App. 319, 785 A.2d 806 (2001). A person should discuss treatment decisions with qualified clinicians and explain the reasons for any delay, missed appointment, or declined treatment; litigation pressure is not a substitute for medical judgment.
Mitigation is different from contributory negligence
Maryland’s contributory-negligence doctrine concerns a plaintiff’s negligence that contributes to the accident or injury and may bar recovery. Mitigation addresses conduct after the defendant’s wrongful act that allegedly increases the consequences. The distinction matters: later conduct that merely worsens an already completed injury may reduce damages attributable to that worsening rather than bar the entire claim. See Rogers v. Frush, 257 Md. 233, 262 A.2d 549 (1970); Hopkins, 141 Md. App. 319.
Related Maryland Cases and Authorities
Hopkins v. Silber, 141 Md. App. 319, 785 A.2d 806 (2001); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Rogers v. Frush, 257 Md. 233, 262 A.2d 549 (1970); Sergeant Co. v. Pickett, 285 Md. 186, 401 A.2d 651 (1979).