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Posted by: John Day on Aug 26, 2019

Journal Issue Date: Sep 2019

Journal Name: Vol 55 No 9

Everyone knows that a personal injury plaintiff has the duty to mitigate his or her damages. This makes good sense: a plaintiff should make a reasonable effort under the circumstances to avoid increasing the financial burden placed on a negligent defendant.

That said, the conduct required by the “duty to mitigate” can mean one thing to one person and quite another thing to a different person, as we can see in the recent case of Kirby v. Memphis Light Gas & Water.1

Kirby suffered a back injury in a motor vehicle wreck accident primarily caused by one of defendant’s employees. Kirby’s neurosurgeon recommended before trial that he have spinal decompression surgery at L4-L5 and Kirby respectfully declined.2 Kirby explained that he previously had a similar surgery on L5-S1 more than 10 years earlier and that it took him 18 months to recover from the surgery. He testified that fact, coupled with the fact that his wife was in school (so he was the sole breadwinner), made it necessary for him to decline surgery at that time.

Kirby’s trial medical expert testified that future surgery would likely be necessary to relieve Kirby’s pain and that only surgery would correct the L4-L5 disk herniation.3

After a bench trial, the judge assigned plaintiff 30 percent of the fault and awarded him $150,000 in damages,4 which included an award for future medical expenses to cover a future surgery.5 On appeal, defendant argued that the award for future medical expenses was speculative, and that plaintiff had failed to mitigate his damages by stopping treatment when he did.6

The Court of Appeals upheld the award, first noting that damages for future medical expenses are permitted if “reasonably certain,” but that standard “does not require proof to an absolute certainty.”7 The court found that the evidence supported the trial judge’s decision to include the cost of future surgery because (a) the doctor established it was necessary; (b) the doctor established the reasonableness of the charges for that surgery; and (c) Kirby has not ruled out having the surgery in the future.8

On the “duty to mitigate,” the Court of Appeals explained that the duty cannot impose an “undue burden” or be “impossible under the circumstances.”9 Rather, the question is “whether the method [plaintiff] employed to avoid consequential injury was reasonable under the circumstances existing at the time.”10 The appellate court reviewed the evidence, found the trial judge was in the best position to determine Kirby’s credibility on the issue of why he declined surgery before trial and whether he was likely to have it in the future, and affirmed.11
Did the trial judge and Court of Appeals reach the right result on the law? There are two issues. First, has a person who rejects doctor’s recommendation of surgery failed to mitigate as a matter of law? And second, does a person’s rejection of a doctor’s advice before trial preclude, as a matter of law, a recovery of costs to be incurred for accepting that medical advice in the future?

Most people will agree that no rational person would have surgery if it could be avoided or delayed with minimal risk or inconvenience. Every surgery has risks, not the least of which is infection, and economic consequences (the expense of the procedure and later medical care, loss of income, impact on a spouse’s income, etc.). A rational person (even one who can afford surgery and the related economic consequences) would weigh the risks and benefits of the surgery before agreeing to it. The fact that a doctor recommends the procedure is relevant but should not be dispositive of the issue of whether the surgery must proceed when the doctor would prefer it proceed.

Likewise, one might reasonably forgo surgery today but plan to have it in the future. For example, a reasonable person might well say, “The surgeon says I would benefit a bilateral knee replacement today, but I am only one year from retirement. If I can put the surgery off until then I am more likely to have the time to actually do the appropriate therapy to achieve the best results from the procedures.” Health care decisions, like most decisions, frequently involve a cost–benefit analysis, and a rational person may well choose to defer treatment (and accept additional pain and inconvenience) in the short run, but still plan to address the issue at an appropriate later time.

In my judgment, the resolution of these two issues should ordinarily turn on the facts and not be resolved as a matter of law.12  Kirby should not be denied the right to present evidence on or argue why he elected to defer surgery. The defense should not be denied the right to introduce evidence or argue that Kirby’s decision was unreasonable, and the future surgery was unlikely to ever take place. But we should ordinarily count on factfinders, who are sworn to follow the law, to hear and see the evidence, make appropriate judgments about credibility and decide these issues. We should then count on the appellate courts to evaluate those decisions based on established standards of review.
Admittedly, this means it is difficult to predict with absolute certainty what will happen in any particular fact situation involving these issues. That is maddening for those who desire a “one size fits all” system of civil justice, where more “bright line” tests are applied “as a matter of law.”

Some bright line tests are necessary. But we must also recognize that (a) predicting how to fairly paint such lines is a very difficult task; and (b) we must use words to paint such lines, and we all know the challenges the English language presents in that regard. And, of course, the Yiddish proverb “Mann Tracht, Un Gott Lacht” (“Man plans, God laughs”)13 inevitably comes into play to frustrate even those with good intentions who attempt to create bright-line tests in a world filled with human beings.

The Kirby courts got it right on the law. And the law is right.

John Day is a personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro, and Nashville. He wishes he had the wisdom, foresight, and mastery of the English language to be able to draft fair, bright-line tests in tort law that would result in predictable litigation outcomes in every injury or death scenario. Alas, he does not.


1. No. W2017-02390-COA-R3-CV (Tenn. Ct. App. April 29, 2019). The Court of Appeals
should be commended for releasing the decision in this case in less than 11 weeks after oral argument.
2. He also refused epidural steroid injections, which did not help him with his prior back issues.
3. The Court of Appeals opinion does not indicate whether defendant used the services of a medical witness to offer a contrary opinion.
4. Thus, the judgment entered for Kirby was $105,000.
5. Future medical expenses were determined to be $68,500. Because he did not receive medical treatment before trial, plaintiff gave up the right to seek damages for nonnegligent complications of surgery, such as all economic and noneconomic damages arising from infection, paralysis and death.
6. Kirby not only refused the medical treatment offered him but took a less physical,
lower paying job in an attempt to ease his back pain. Kirby v. Memphis Light, Gas & Water, No. W2017-02390-COA-R3-CV at * 6 (Tenn. Ct. App. April 29, 2019).
7. Id. at * 5.
8. Id.
9. Id. at * 6. (Citations omitted.)
10. Id. (Citations omitted.)
11. Id. * 7-8. Interestingly, there was no discussion about whether damages could or should be awarded for future pain and suffering under these facts.
12. Of course, general summary judgment, directed verdict and (in a nonjury trial) involuntary dismissal rules apply: if the material facts are not contested and reasonable minds cannot differ as to what course of action must be taken to satisfy the “duty to mitigate,” the issue can be taken from the factfinder.
13. This is also the title of Public Enemy’s 13th album.