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Car crash victim loses $50,000 for not doing ‘risky’ & ‘unpredictable’ shoulder surgery

May 6, 2015 by Steven M. Gursten

Accident victim’s so-called ‘failure to mitigate damages’ reduces $150,000 pain and suffering verdict for a car accident by $50,000

Brehmer v. State Farm shoulder shurgery

What did car crash victim Richard Brehmer do that was so bad that it cost him $50,000?

Well …  First, he had the “audacity” to opt out – with his doctor’s full knowledge and agreement – of a “‘somewhat risky’” and “unpredictable” second shoulder surgery that “could lead to a different pain and instability …”

Second, without the benefit of any actual medical proof, Mr. Brehmer was suspected – by a physical therapist and a doctor who never treated or actually examined Mr. Brehmer – of questionable compliance with his in-home physical therapy exercises.

Not exactly “crimes of the century,” right?  In fact, I believe the vast majority of people would have done exactly what Mr. Brehmer did if they were in his situation.

But the case holds some very important and nasty lessons for Michigan accident attorneys on what they need to be advising their clients when they receive surgery recommendations.

The  Michigan Court of Appeals in Brehmer v. State Farm/Auto Owners upheld a jury’s reasoning, with a healthy dose of complete speculation as well, to justify reducing Mr. Brehmer’s $150,000 pain and suffering verdict “by $50,000” for his “fail[ure] to mitigate his damages.”

In other words, the appellate courts concluded, Mr. Brehmer deserved to lose one-third of his “past noneconomic damages” award because he had – in their estimation – not done enough to “mitigate” the damages and harm he suffered after his arm and shoulder were injured when the tractor he had been driving was struck by a car and “flipped over.”

An important lesson for Michigan accident attorneys

 The Brehmer case is a bad and dangerous ruling that arguably now forces car accident victims into being forced into unnecessary and risky medical procedures such as surgeries. And it forces the attorneys for these people into a perpetual state of hyper-vigilance (hyper-paranoia) about making sure the clients they represent cannot be accused of having “failed to mitigate damages.”

Not only must they worry about being accused of non-compliance – without proof and by people without first-hand knowledge – but they may also feel pressured to submit to medical procedures that are unnecessary, risky and possibly, capable of making their conditions worse. I know when I first read this decision, my first thought was if I were an insurance defense attorney, I would be raising failure to mitigate in every single case where a plaintiff has failed to act on any medical recommendation made in the records. And it gives the rather nasty defense and insurance medical examiners who routinely are hired to help the defense attorneys and insurance companies mitigate damages in civil injury lawsuits one more nasty tool to use in their reports and depositions.

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