On June 28, 2018, a Trial Judge in Erie County refused to set aside a jury verdict awarding a trip and fall victim $350,000 for past pain and suffering but nothing for the future even though she sustained a permanent painful injury. The plaintiff fractured her arm and the ball of her hip requiring a partial hip replacement. Following 3 months of rehab and physical therapy the plaintiff's recovery began to deteriorate and it became increasingly difficult for her to walk.

Her orthopedist recommended a revision surgery to remove her loosening femoral prosthetic and implant a total hip replacement. The plaintiff agreed but the surgery was cancelled because her husband died and she refused to reschedule it because there would be no one to care for her post operatively. Unfortunately for the plaintiff, her orthopedist testified at trial that the proposed revision surgery was a “reasonably safe procedure, which would improve plaintiff's condition and alleviate her pain.”

Based on the plaintiff's orthopedist's testimony the trial judge instructed the jury on a well settled principle of law called: “Mitigation of Damages”. The jury was told that a plaintiff is not permitted to recover future damages for pain and disability if those conditions “could have been avoided by (undergoing a surgery) which a reasonably prudent person” would have done to alleviate the pain and disability. Basically, the jury found that the plaintiff was acting unreasonably in refusing a safe surgery that would relieve her suffering. McDonough v Transit Road Apartments, 2018 WL 3234201