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Duty to Mitigate Charge Clarified

In Drake v. Bingham (AC 30265) (to be released September 27, 2011), the Appellate Court reversed the medical malpractice verdict in favor of the defendant on the grounds that the trial court failed to properly charge the jury on the issue of mitigation of damages. The court's instruction did not clearly state, nor could it have been readily inferred by the layperson, that the jury is to deduct only that portion of damages attributable to an aggravation or increase in injury caused by the failure to mitigate and that the defendant has the burden to prove such aggravation or increase.

At issue were the several missed physical therapy appointments (five out of 11) to treat the minor plaintiff Dariyon Drake's Erb's palsy - a condition caused by the defendant's use of excessive traction once a shoulder dystocia was encountered during Dariyon's birth. Lashekas White, Dariyon's mother, testified that she did not take her son to all of his appointments because she did not have transportation.

The first two issue presented on appeal were resolved in favor of the defendants. First, the Appellate Court concluded that evidence of these missed therapy appointments was relevant to the issue of damages. The evidence tended to show that the failure to attend these appointments may have caused a degree of aggravation of Dariyon's injuries. Further, the prejudicial effect of this evidence was outweighed by its probative value. Second, the court held that the evidence was sufficient to warrant a jury charge on mitigation of damages.

However, as to the third issue - the accuracy of the charge itself - the court found in favor of the plaintiff. Specifically, the trial court erred in failing to instruct the jury that it may reduce damages only if it found that the defendant had proven by a preponderance of the evidence that any failure to mitigate damages caused an aggravation of the injury. In other words, the trial court did not adequately explain the relationship between the duty to mitigate and the connection to an aggravation of the injury. The jury must be clearly instructed that it may apply the doctrine of mitigation only to the extent that the defendant has proven that the plaintiff's injuries were increased or aggravated by his own conduct.

On a final note: the court did not address the question of whether evidence of the missed therapy appointments was irrelevant because a parent's failure to mitigate damages could not be imputed to the parent's child.

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