What Does It Mean to Mitigate Damages in a Massachusetts Injury Case?

Mitigating damages means taking the reasonable steps an ordinary person would take to keep an injury from getting worse or costing more than it has to. In practice that is medical care you actually attend, treatment advice you actually follow, and a return to some kind of work when you are able. Massachusetts does not put this duty in a numbered statute for ordinary injury claims. It is a common-law rule, which is why searching the General Laws for the phrase leads nowhere and why an insurance adjuster can describe it however it suits them. What the General Laws do settle is who has to prove a failure to mitigate, and the answer is not the injured person: M.G.L. c. 231, sec. 85 places the burden on “the person who seeks to establish such negligence” and adds that “the plaintiff shall be presumed to have been in the exercise of due care.” There are two Massachusetts systems where the legislature did write consequences into statute, no-fault benefits and workers compensation, and in those two the penalties are far harsher than most people are told. To talk through a specific situation, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day, and the first telephone consultation is offered without charge.

The Rule Is Real, and It Is Not Where People Look for It

Two things are true at once, and holding both is the point of this article.

The duty to mitigate is genuine. A person injured by someone else’s negligence cannot sit on the injury, skip the treatment that would have fixed it, and then send the bill for the larger problem to the person who caused the smaller one. Massachusetts courts apply that principle, and it has a formal name, the doctrine of avoidable consequences.

But it is a common-law doctrine rather than a statute. There is no chapter and section for it in ordinary negligence cases. That absence matters more than it sounds, because it means there is no fixed list of what counts, no schedule of penalties, and no bright line an adjuster can point at. Everything about it is a question of reasonableness in context, decided at the end of a case rather than announced at the start of one.

What insurers do with that vacuum is predictable. A letter arrives saying that a gap in treatment, a missed physical therapy appointment, or a decision to try rest before surgery has failed to mitigate, and that the claim value has been adjusted accordingly. The letter reads like the application of a rule. It is an argument, and it is one the insurer would have to prove.

Who Has to Prove It

This is the part of Massachusetts law that gets left out of that letter.

M.G.L. c. 231, sec. 85 is the comparative negligence statute, and its final sentence is the one that matters here. The statute provides that “the burden of alleging and proving negligence which serves to diminish a plaintiff’s damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.”

Read that against a failure-to-mitigate argument. The insurer is asserting conduct by the injured person that should reduce what the injured person recovers. That is precisely the category the sentence describes. The insurer carries the burden, and the starting presumption runs the other way.

The same statute sets out what happens if the argument does land. Under sec. 85, contributory negligence “shall not bar recovery” unless the injured person’s share of negligence was “greater than the total amount of negligence attributable to the person or persons against whom recovery is sought,” and where recovery is allowed, “any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.”

So a successful mitigation argument is a proportional reduction, not a switch that turns the case off. A claim is barred only where the injured person’s share exceeds fifty per cent, and sec. 85 also states that “the combined total of the plaintiff’s negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.”

One more sentence in the same section is worth knowing, because it comes up constantly in crash cases. Sec. 85 provides that a plaintiff’s violation of a criminal statute, ordinance or regulation “shall be considered as evidence of negligence of that plaintiff, but the violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery.” A ticket is evidence. It is not a verdict.

Answer Capsule

Mitigating damages in Massachusetts means taking the reasonable steps an ordinary person would take to limit the harm from an injury: attending the medical care you need, following the treatment your providers recommend, and returning to work when you are able. For ordinary injury claims the duty is common law rather than statutory, so no chapter and section defines it and no penalty schedule attaches to it. M.G.L. c. 231, sec. 85 governs what happens when an insurer argues it, and that statute places the burden of proof on the party asserting the reduction, states that “the plaintiff shall be presumed to have been in the exercise of due care,” and makes any reduction proportional rather than total unless the injured person’s share of fault exceeds fifty per cent. Two Massachusetts systems do carry statutory consequences. Under M.G.L. c. 90, sec. 34M a person claiming no-fault benefits must submit to insurer medical examinations “as often as may be reasonably required,” and “noncooperation of an injured party shall be a defense to the insurer.” Under M.G.L. c. 152, sec. 45 a worker who refuses or obstructs a medical examination has the right to compensation suspended, and compensation during the suspension “may be forfeited”; under sec. 30G an insurer “may reduce by fifteen percent the weekly benefits” of an employee who refuses vocational rehabilitation services. This is general information about Massachusetts law and not legal advice.

What the Duty Actually Asks of a Person

Because the standard is reasonableness rather than a checklist, it helps to describe what it looks like from the inside.

It asks you to get evaluated when you are hurt, rather than waiting months to see whether the pain resolves on its own. It asks you to attend the appointments that get made for you, or to reschedule them rather than simply not appearing. It asks you to fill and take the prescriptions, do the home exercises, and tell your providers when something is not working, so the record reflects the problem instead of a silence. It asks you to follow work restrictions in both directions, meaning not returning to heavy duty against advice and also not staying out longer than the restrictions call for. And where a treating provider recommends a step and you decide against it, it asks that the decision be a considered one you can explain, with the reason in the record.

That last one carries most of the real cases. Declining a recommended surgery is not automatically a failure to mitigate, because nobody is obliged to accept every intervention a doctor proposes. What makes the difference is whether the refusal was reasonable, and reasonableness is far easier to establish when the chart shows a conversation, a second opinion, a cost, a risk, or a documented fear of the procedure than when it shows a patient who stopped appearing.

The Gap in Treatment, and What It Is Actually Worth

The most common version of this argument in Massachusetts injury claims is the treatment gap. An adjuster’s summary flags a stretch of weeks with no visits and attributes everything after the gap to something other than the crash.

Three responses are usually available, and all three are factual rather than legal.

The first is the reason for the gap. Waiting lists for orthopedic and neurology appointments are long, specialist referrals take time, and a person with no car after a crash and no ride to an appointment has a practical obstacle rather than an indifferent attitude. So does a parent with no childcare, a worker with no paid leave, and a patient waiting on a prior authorization. None of that is invisible if someone writes it down. Almost none of it reaches a medical record on its own.

The second is what a gap does and does not prove. A person whose pain improved for six weeks and then returned has an ordinary injury course, not a fabricated one. The absence of visits during an improvement is consistent with the claim rather than against it.

The third is the burden, from the section above. The insurer asserting the gap is asserting the reduction, and under sec. 85 it is the insurer’s job to prove that the gap actually caused a larger loss, not merely that the gap existed. That distinction is easy to lose in a phone call and it is the whole of the argument.

No-Fault Benefits Have a Statutory Version of This Rule

Personal injury protection is where the soft common-law duty becomes a hard statutory one, and it is the reason a Massachusetts crash claim can be damaged early by something that would be harmless in a general negligence case.

M.G.L. c. 90, sec. 34M requires that “the injured person shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required and shall do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due.” That is a duty to cooperate, written into the statute, running to the insurer that pays the no-fault benefits.

The consequence sits in the same section: “Noncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section and failure of an insurer to pay benefits in the event of such noncooperation shall not in any way affect the exemption from tort liability granted herein.”

Two things follow. First, missing the insurer’s medical examination, often called an independent medical examination, is not the same kind of problem as missing a treating appointment. It is a statutory defense to the benefits. Second, and worse, that closing clause means an insurer’s refusal to pay on noncooperation grounds does not disturb the tort exemption the no-fault system creates. The benefits can be defended against without the wider protections falling away with them.

The practical rule is short. A letter scheduling an insurer examination is not optional correspondence, and if the date does not work, the answer is to reschedule it in writing rather than to skip it. How these benefits work, and the medical-bill threshold that goes with them, is set out in the article on personal injury protection in Massachusetts.

Workers Compensation Is the One Place With a Price List

To see what Massachusetts looks like when the legislature does attach numbers to a failure to cooperate, look at workers compensation.

M.G.L. c. 152, sec. 45 requires an injured employee, “from time to time thereafter during the continuance of his disability,” to submit to examination by a registered physician furnished and paid for by the insurer. The employee is entitled to have a physician of their own present. And then: “If the employee refuses to submit to the examination or in any way obstructs it, his right to compensation shall be suspended, and his compensation during the period of suspension may be forfeited.”

Suspended, and possibly forfeited. Not argued about later in front of a jury.

The same section extends the rule past medicine: “The employee’s right to compensation shall also be suspended during any period the employee refuses the insurer’s written request that the employee be evaluated by a vocational rehabilitation specialist within the department.” There is a limit on how often the insurer can make that request, which is worth knowing, because sec. 45 states that the written request “may occur only once every six months.”

The vocational side has its own numbers in M.G.L. c. 152, sec. 30G. An employee who refuses to meet with the office of education and vocational rehabilitation “shall not be entitled to weekly compensation benefits during the period of such refusal.” An employee whom the office has deemed suitable for services and who then refuses them faces a different penalty: the insurer “may reduce by fifteen percent the weekly benefits payable” during the refusal. Sec. 30G also blocks the exit, providing that no lump sum settlement shall be reached with an employee deemed suitable who has not completed a program “without the express written consent of said office.” Under M.G.L. c. 152, sec. 30H, a program developed by that office runs no longer than 104 weeks.

There is one more piece, and it is the closest thing Massachusetts has to a statutory duty to mitigate lost wages. M.G.L. c. 152, sec. 35D computes partial compensation from “the weekly wage the employee is capable of earning,” taking the greatest of five measures, including “the earnings the employee is capable of earning in a particular suitable job” where that job “has been made available to the employee and he is capable of performing it,” and, as a catch-all, “the earnings that the employee is capable of earning.” The statute defines what suitable means: “any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee’s injury, so long as such job bears a reasonable relationship to the employee’s work experience, education, or training.” A written job offer from the employer together with a written report from the treating physician that the employee can perform it is “prima facie evidence of an earnings capability.”

In other words, in a Massachusetts workers compensation case, refusing suitable work does not have to be litigated as a failure to mitigate at all. It can be built straight into the benefit calculation. The related questions of what the insurer must pay for medically, and how these benefits interact with disability benefits, are covered in does workers comp cover medical bills in Massachusetts and workers comp compared with disability benefits.

What Mitigation Does Not Require

It is as useful to know the limits, because the argument gets stretched.

It does not require accepting every recommended procedure. A refusal has to be unreasonable to count, and the injured person is entitled to weigh risk, cost, and their own circumstances.

It does not require going back to a job you cannot physically do. In the workers compensation system, sec. 35D says a suitable job must be one the employee “is physically and mentally capable of performing.”

It does not require achieving a good outcome. The duty is to act reasonably, not to recover.

It does not require perfection in the record. A missed appointment is not a forfeiture. In an ordinary tort claim it is one fact among many, and under sec. 85 it is the other side’s job to show what it cost.

And it does not turn on the seat belt in the way many people assume. M.G.L. c. 90, sec. 13A makes seat belt use mandatory and sets a twenty-five dollar fine, and reading the full section shows that it says nothing at all about civil admissibility. That subject is worked through in the seat belt defense in Massachusetts car accident claims.

What Actually Helps

Keep the record complete rather than flattering. A chart that says a patient could not get a ride and rescheduled is stronger than a chart with a silent six-week hole in it, even though the second one looks tidier.

Say the reason out loud at the appointment, so it lands in the note rather than in a memory.

Reschedule in writing, especially any examination requested by an insurer under c. 90, sec. 34M or c. 152, sec. 45.

Follow restrictions in both directions, and get them updated when they change.

And keep the deadline in view while all of this is going on. For an ordinary negligence claim in Massachusetts the limit is generally three years under M.G.L. c. 260, sec. 2A, and it runs whatever the treatment is doing. The full set of deadlines by claim type is in the Massachusetts statute of limitations for every claim.

Frequently Asked Questions

Q: What does it mean to mitigate damages in Massachusetts?

A: It means taking the reasonable steps an ordinary person would take to keep an injury from getting worse or more expensive: getting evaluated, attending the care you need, following treatment recommendations, and returning to work when you are able. For ordinary injury claims the duty is a common-law rule rather than a statute, so there is no chapter and section that defines it and no fixed list of what counts. Everything turns on what was reasonable in the circumstances.

Q: Who has to prove that I failed to mitigate my damages?

A: The party arguing it. M.G.L. c. 231, sec. 85 provides that “the burden of alleging and proving negligence which serves to diminish a plaintiff’s damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.” An adjuster’s letter asserting a failure to mitigate is an argument that would have to be proved, not a rule being applied.

Q: Does a gap in my treatment destroy my claim?

A: Not on its own. A gap is a fact that has to be explained, and the explanations are usually ordinary: a specialist waiting list, no transportation after the crash, no childcare, no paid time off, a prior authorization, or a stretch where the pain genuinely improved before it returned. Under M.G.L. c. 231, sec. 85 the insurer has to show that the gap caused a larger loss, not simply that it happened, and any reduction that follows is proportional rather than total unless the injured person’s share of fault exceeds fifty per cent.

Q: Can I refuse a surgery my doctor recommends?

A: Yes, and refusing is not automatically a failure to mitigate. The question is whether the refusal was reasonable, and a person is entitled to weigh the risks, the cost and their own circumstances. What makes the difference in practice is the record: a documented conversation, a second opinion, or a stated reason is much stronger than a patient who simply stopped attending.

Q: What happens if I skip the insurance company’s medical examination?

A: In a Massachusetts no-fault claim that is a statutory problem rather than a soft one. M.G.L. c. 90, sec. 34M requires that the injured person “shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required,” and the same section provides that “noncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section.” If the appointment does not work, the answer is to reschedule it in writing rather than to miss it.

Q: Can workers comp benefits be cut for refusing treatment or a job?

A: Massachusetts writes those consequences into the statute. Under M.G.L. c. 152, sec. 45, an employee who “refuses to submit to the examination or in any way obstructs it” has the right to compensation suspended, and compensation during the suspension “may be forfeited”; the same section suspends benefits during a refusal of a written request for a vocational rehabilitation evaluation, which the insurer may make “only once every six months.” Under sec. 30G, an employee who refuses to meet the office of education and vocational rehabilitation “shall not be entitled to weekly compensation benefits during the period of such refusal,” and an insurer “may reduce by fifteen percent the weekly benefits payable” to an employee deemed suitable for services who refuses them.

Q: Do I have to take any job I am offered while I am injured?

A: No, but the job matters. In the workers compensation system, M.G.L. c. 152, sec. 35D bases partial benefits on “the weekly wage the employee is capable of earning” and counts earnings from a suitable job that “has been made available to the employee and he is capable of performing it.” The statute defines a suitable job as one the employee “is physically and mentally capable of performing, including light work,” that “bears a reasonable relationship to the employee’s work experience, education, or training.” A written job offer plus a written report from the treating physician that you can perform it is “prima facie evidence of an earnings capability,” which means it can be answered but should not be ignored.

Q: Does mitigating damages change my filing deadline?

A: No. Treatment and the limitations period run independently. For an ordinary negligence claim the deadline is generally three years under M.G.L. c. 260, sec. 2A, and continuing to treat does not extend it. Claims against a public employer, medical malpractice claims and several other categories run on different clocks.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Whether a particular gap, refusal or return to work matters in a particular claim depends on facts a general article cannot see. To discuss a specific situation, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free.

Talking to a Lawyer

The expensive misunderstanding here is a small one. People hear that they have a duty to mitigate, they hear it from the insurance company, and they come away thinking any imperfection in their medical history is a fault they will have to answer for. In an ordinary Massachusetts injury claim the statute points the other way: under M.G.L. c. 231, sec. 85 the burden sits with whoever is arguing the reduction, and the presumption starts with the injured person. What genuinely deserves attention is the smaller set of places where the legislature wrote a consequence down, the insurer examination under c. 90, sec. 34M and the examination and vocational provisions of c. 152, because those operate without waiting for anyone to argue about reasonableness.

Jim Glaser Law takes calls about Massachusetts injury claims, including claims an insurer has already said are worth less because of a gap, a refusal, or a return to work. The line at (617) JIM-WINS is answered 24 hours a day. The first telephone consultation is free.