Author: Richard H. Adler

In Washington, one who is injured through the negligence or recklessness of another is entitled to certain rights, including reasonable and necessary health care treatment. The injured party, however, also has a duty to "mitigate" damages. "Mitigation of damages" means that the injured person must take "reasonable" steps to lessen or reduce one's damages or injuries; for example, to take the initiative to seek care and keep injury-related conditions from getting worse. The injured person must also follow through with the care that has been recommended by the treating doctor.

If it can be shown that a patient did not adhere to the treatment recommendations made by his/her health care providers and if the defendant, typically through the insurance company, can show that the lack of follow through ultimately led to a worsening of the initial injuries or a more prolonged and costly rehabilitation, the defendant may argue that the additional treatment costs are not reimburseable because they were incurred as a result of the patient's actions or inaction.

The duty to mitigate is not absolute. Rather, it consists of what is "reasonable under the circumstances to avoid or minimize the damages." Circumstances to be considered include lack of financial resources or insurance coverage to pay for treatment, transportation difficulties, or time management problems; for example, single working parents. The law also assumes the patient to be an informed consumer and to make a determination whether treatment is effective and if costs are reasonable.

These important medical-legal principles affect the provider-patient relationship in several ways:

1. The health care provider may gain greater compliance with the treatment plan from the patient who knows that the law imposes a duty to try to get better. A patient may become more conscious of following through with the provider's advice if he/she knows that equitable resolution of his/her claim depends on follow through with recommended care, and that failure to follow through may devalue and delay final resolution of the claim.


2. It is important for the health care provider to establish clear and effective communication with the patient concerning prescriptions, referrals, and therapeutic advice. The patient must understand all that the provider advises as well as how and when to act upon such advice.


3. Any notation a health care provider enters in the patient's records regarding compliance with treatment carries great importance. "Missed appointment" or "no show" in the records without the patient's explanation of why the appointment was missed allows the insurance company to claim that the patient was irresponsible, thus creating a prolonged rehabilitation period.


4. If the health care provider acknowledges that the patient is unable to follow through with the recommended treatment regime, the reasons should be explicitly recorded in the patient's file, along with a notation that when time, money, energy, or circumstances allow, the provider will re-evaluate the recommendation.


5. If the patient has not complied with the recommended care, then it is important for the health care provider to ask the patient whether he/she is doing all that was advised and, if not, the reason for deviation from the recommended treatment.

At Adler Giersch, P.S., we are aware of the time constraints under which many health care professionals work. When we represent one of your patients and are informed that he/she is not following through on all of your advice, we will ensure that the patient/client is made aware of the medical-legal ramifications. We remain accessible to assist you, your staff, and our client in any way necessary to ensure that our client receives all the care needed and that his/her actions follow your prescribed course of rehabilitation.

If you or your patients need legal advice or just would like to have some questions answered, we will be glad to help. Simply give us a call. There is no charge for an initial consultation.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

¹ WE ARE GRATEFUL FOR THE WORK OF CONTRIBUTING AUTHOR, TRISH BASHAW, PARALEGAL AT ADLER GIERSCH, P.S.
² Sutton v. Shufelberger, 31 Wn.App. 579, 643 P.2d 920 (1982).