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WPI 33.02 Avoidable Consequences—Failure to Secure Treatment

6 WAPRAC WPI 33.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 33.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Damages
Chapter 33. Damages—Mitigation—Avoidable Consequences
WPI 33.02 Avoidable Consequences—Failure to Secure Treatment
A person who is liable for an injury to another is not liable for any damages arising after the original [injury] [event] that are proximately caused by failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damages.
In determining whether, in the exercise of ordinary care, a person should have secured or submitted to medical treatment, as contended by(insert name of applicable party), you may consider [the nature of the treatment,] [the probability of success of such treatment,] [the risk involved in such treatment,] [(other factors in evidence),] and all of the surrounding circumstances.
(Insert name of applicable party)has the burden to prove(insert name of other party)'s failure to exercise ordinary care and the amount of damages, if any, that would have been minimized or avoided.
Use this instruction only if (1) there is evidence creating an issue of fact as to the injured person's failure to exercise ordinary care in receiving or submitting to medical treatment, and (2) the evidence permits a segregation of the damages resulting from that failure to exercise ordinary care.
Use bracketed material as applicable. For issues about avoidable consequences other than failing to secure or submit to medical treatment, see WPI 33.01 (Avoidable Consequences—Personal Injury Generally) or WPI 33.03 (Avoidable Consequences—Property or Business).
RCW 4.22.005 and RCW 4.22.015.
RCW 4.22.005 provides that contributory fault proportionately diminishes the amount of a claimant's recovery. RCW 4.22.015 defines “fault” as including “unreasonable failure to avoid an injury or to mitigate damages.”
Whether or not reasonable care requires an injured person to submit to the treatment is a jury question. Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 308, 367 P.2d 981 (1962). The principles relating to the duty of an injured person in the securing of treatment are considered in Dahl v. Wagner, 87 Wash. 492, 494–96, 151 P. 1079 (1915); Hoseth v. Preston Mill Co., 49 Wash. 682, 687–89, 96 P. 423 (1908); and Rowe v. Whatcom Cnty. Ry. & Light Co., 44 Wash. 658, 87 P. 921 (1906). See also Shipley, Duty of Injured Person to Submit to Surgery to Minimize Tort Damages, 62 A.L.R.3d 9 (1975).
The opinion in Cox v. Keg Restaurants U.S., Inc., 86 Wn.App. 239, 243–48, 935 P.2d 1377 (1997), contains an extended discussion of the sufficiency of evidence required to submit to a jury the issue of a plaintiff's unreasonable failure to secure treatment. The court noted that where causation turns on “obscure medical factors,” expert testimony is required. “Submitting the issue to the jury without such testimony is improper because the jury is thus invited to reach a result based on speculation and conjecture.” Cox, 86 Wn.App. at 244. The court further stated that the issue “should also not be submitted if the evidence shows that a proposed treatment might not be successful or if there is conflicting testimony as to the probability of a cure because it is not unreasonable for a plaintiff to refuse treatment that offers only a possibility of relief.” Cox, 86 Wn.App. at 244.
Similarly, in Hawkins v. Marshall, 92 Wn.App. 38, 47–48, 962 P.2d 834 (1998), although there was evidence the plaintiff had failed to follow her doctor's advice, there was no evidence presented that this omission aggravated her condition or delayed her recovery. Accordingly, it was not error to refuse to give this instruction.
Where, however, evidence is presented from which the jury could conclude that plaintiff's failure to secure treatment was unreasonable and that treatment would have improved or cured plaintiff's condition, the giving of an instruction on mitigation of damages is proper. Fox v. Evans, 127 Wn.App. 300, 304–09, 111 P.3d 267 (2005).
For additional discussion, see the Comments accompanying WPI 33.01 (Avoidable Consequences—Personal Injury Generally) and WPI 33.03 (Avoidable Consequences—Property or Business).
[Current as of April 2021.]
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