Virginia Supreme Court Establishes Rules For A Failure To Mitigate Damages Defense

Published on: 5/11/2006

Sometimes in medical malpractice cases a component of the defense is to attack the plaintiff's damages, including the defense that the plaintiff failed to mitigate his damages. An April 21, 2006, Virginia Supreme Court opinion has clarified the ground rules for such an attack.

In Monahan v. Obici, 628 S.E.2d 330 (2006), the plaintiff presented to Wakefield Medical Center with complaints of double vision, unsteady walk, and a hot and sweaty appearance. Mr. Monahan was evaluated by a nurse practitioner, who determined that he was having a hypertension crisis. The nurse practitioner gave him some blood pressure medication and instructed him to go home and rest for the remainder of the week. Shortly thereafter, a Wakefield employee observed Mr. Monahan at a nearby pharmacy "walking like somebody that was drunk and dizzy." The nurse practitioner went outside to check on Mr. Monahan. At trial, there was conflicting testimony regarding exactly what the nurse practitioner told Mr. Monahan. However, the nurse practitioner admitted on cross examination that ultimately, she presented him with two options: (1) go directly to the emergency department, or (2) go home, lie down, and have his wife take him to the emergency department if he had any change in his condition.

Mr. Monahan went home, and his wife later took him to the hospital where she worked, which was 50 minutes away, instead of to a hospital only 30 minutes away. Mr. Monahan was diagnosed as having suffered a stroke, which he alleged the defendant failed to properly and timely diagnose. At trial, the court overruled Plaintiff's motion to strike the evidence related to the wife's hospital choice. The defendant requested a jury instruction on mitigation of damages, which the trial court gave. The plaintiff objected to the instruction because the defendant failed to plead mitigation of damages as an affirmative defense. The jury returned a verdict for the plaintiff in the amount of $215,000.

The issue of the need to plead the affirmative defense of mitigation of damages was a question of first impression. The Court ruled that this affirmative defense need not be specifically pled in order for the defendant to assert it, provided the issue has otherwise been shown by the evidence. The Court explained that mitigation of damages is a distinctive affirmative defense because, if proven, it is not an absolute bar to the plaintiff's claim.

However, the Court determined that the trial court should have granted Plaintiff's motion to strike the evidence related to the wife's hospital choice. There was no evidence that Mr. Monahan's injuries were in any way affected by the wife's hospital choice, and therefore that evidence was "irrelevant to whether Monahan failed to mitigate his damages."

The Court further held that there was insufficient evidence to support the mitigation instruction, holding that "a mitigation of damages instruction is proper when evidence shows that a plaintiff failed to mitigate his damages by neglecting his health following his physician's negligent treatment." In this case, because Mr. Monahan followed one of two treatment options recommended by the nurse practitioner, "no act of negligence supporting a failure to mitigate damages can be attributed to him." On these facts, the instruction on mitigation of damages was improper. As a result, the case was remanded to the trial court for a new trial on issue of damages.

The Monahan case is important because it clarifies that the affirmative defense of mitigation of damages may be raised even where it was not specifically plead. However, in order for the defendant to get a jury instruction on mitigation of damages, there must be evidence showing that the plaintiff somehow neglected his health, such as failure to follow post-operative instructions provided by a surgeon. Where a healthcare provider has provided options for treatment, following one of those options will not support a mitigation defense. In addition, there must be evidence that the plaintiff's neglect aggravated his injuries or otherwise complicated his recovery.