In a December 27, 2012 decision, the Colorado Court of Appeals held that it was error for a trial court to give an instruction allowing the jury to find that the Plaintiff failed to mitigate her damages if she “continued to undergo expensive treatment when it was not resolving her pain.”  Under the law, an injured party must take reasonable steps to mitigate his or her damages and as such, may not recover damages for injuries that could reasonably have been avoided.  However, the Court noted that in the context of personal injury matters, “a failure to mitigate usually concerns a Plaintiff’s unreasonable failure to seek medical advice or unreasonable failure to follow that medical advice once received.”


In this case, the Court of Appeals found error in the trial court’s instruction because there is no Colorado case law, statute, or treatise holding that an injured party has a duty to stop medical treatment because it is costly or isn’t helping to resolve the pain. In fact, the general rule concerning failure to mitigate in the personal injury context is “any suffering or disability incurred by one who has sustained personal injury, when the same could have been avoided by submitting to treatment by a physician selected with reasonable care, must be excluded as a ground of recovery.”


Here, the Court found that the instruction was improper because the failure to mitigate assertion didn’t focus on the Plaintiff’s inaction.  In fact, the Plaintiff testified that her medical treatment was helping alleviate her pain but was forced to stop treating because it was too costly.  Accordingly, the Court remanded this case back to the trial court holding that “the court should not instruct the jury that [the Plaintiff] continuing to receive expensive treatment that was not resolving her pain constitutes a failure to mitigate.”


For more information regarding this case, see: Banning v. Prester, 11CA1093 (Colo. App. 2012)

Colorado Courts

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