Failure to Obtain Injections and Mitigation of Damages


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether the failure to follow through with steroid injections to treat a shoulder injury should result in mitigation of damages in a personal injury claim.
In the recent case (Lim v. Anderson) the Plaintiff suffered an impingement syndrome following a rotator cuff injury sustained in a collision.  In the course of recovery she had a steroid injection which provided temporary relief.  Her surgeon suggested that the Plaintiff could have further injections although she chose not to follow through with this advice.  The Defendant argued the Plaintiff’s damages should be reduced due to this choice.  Madam Justice Fenlon rejected this argument and provided the following reasons:
[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations…

[23] Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.

[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.

[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.

This judgement can be contrasted with this 2010 decision where a Plaintiff’s damages were reduced by 30% for choosing to follow naturopathic treatment instead of injections/surgery to treat a shoulder injury.

bc injury law, failure to mitigate, Lim v. Anderson, Madam Justice Fenlon

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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