What if ED Patient 'Fails to Mitigate' Damages?

A patient presents with a traumatic dirty wound which is not cleaned completely, and is closed by the ED physician with contaminant still present. The debris in the wound causes an infection resulting in tissue loss, which must be repaired by a plastic surgeon with an extensive skin graft.

However, the patient does not comply with instructions for post-surgical maintenance of the wound which leads to dehiscence, further tissue loss, another skin graft and increased disability.

In this case, "one hundred percent of the injuries from closing the dirty wound, including pain, expenses of the first plastic surgery, and disfigurement associated with the initial skin graft, will be borne by the physician," says Chris DeMeo, JD, a health care attorney at McGlinchey Stafford in Houston, TX.

When awarding money for the plaintiff's injury, though, the jury should be instructed not to award any damages for exacerbation of the injury caused by the patient. Thus, the jury should not award damages for the second surgery, further disfigurement and disability.

This is an example of "failure to mitigate," which is post-incident conduct by the patient which aggravates the injury caused by the defendant. "In the real world, though, asking a jury to evaluate a physician's conduct against that of the patient is like comparing apples to oranges," says DeMeo. "The jury will expect that the medical professional is in a better position to prevent an injury."

Even though each party may have the same amount of negligent acts, the physician is likely to be judged more harshly.

In the above case, for example, the jury may take the position that the complications following the first skin graft wouldn't have happened at all if not for the initial negligence of the physician in closing the dirty wound. Therefore, the jury may say that the physician should be responsible for at least some of those damages, says DeMeo.

Likewise, in the example of a chest pain patient dying of a myocardial infarction after being discharged home from the ED, the jury may consider "the fact the patient received a 'clean bill of health' from the first ED visit, the time of day the pain reoccurred, and the hassle of revisiting the ED, in excusing the patient's decision not to return to the ED," says DeMeo.