WPI 33.02 Avoidable Consequences—Failure to Secure Treatment

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).