Injuries that take a long time to heal

The fact that an injury isn’t healing well, in and of itself, has no bearing on your personal injury case. The issue would be why it’s taking a long time to heal. Depending on that answer, there could be an impact on a personal injury case.

The need to mitigate damages

As a plaintiff, you have an obligation to mitigate (or limit) your damages. You need to act as an ordinary, reasonable person would act in a similar situation. You need to act in good faith and with due diligence in the exercise of ordinary care and reasonable judgment when choosing a doctor or treatment for your injuries.

If you are following the directions of your treating physician and trying to recover in good faith, the fact that recovery is taking a long time should not be an issue. If you had surgery and recovery is delayed due to an infection or complication, though, the defendant may blame your surgeon or hospital and not want to pay for time you’re laid up due to medical complications.

If, on the other hand, you’re not following instructions by not taking medications as prescribed, not going to physical therapy or doing things above and beyond what your physician says you should be doing and you worsen or prolong the injury, that will be a problem. The defendant will try to reduce the amount of damages you may recover by showing you weren’t taking reasonable steps to reduce your loss following your injury.

Refusing surgery or a recommended course of treatment

You cannot claim damages for a permanent injury if your doctor recommends surgery or some other course of treatment that could avoid or reduce the permanency of the injury and you refuse that treatment, if a reasonable person would have followed the suggested course under the same circumstances.

Whether refusal to have surgery or a course of treatment is reasonable depends on a number of factors:

• The degree to which the proposed surgery involves risk of death or further injury
• Whether the surgery is relatively simple with a good record of success
• Whether the surgery is more than routine, involves some hazard, poses serious risks or is considered major and serious surgery
• The probability that the surgery would have resulted in a cure or alleviated the injury

Personal injury cases normally are filed because a serious injury has taken place and so the fact that a long recovery is needed is not unusual. If that recovery is taking a long time because the plaintiff is not acting reasonably in getting treatment, not following medical directions or otherwise not taking care of him or herself, then it becomes a problem.

If you have any questions about personal injury cases, contact our office for a free consultation.