I was in a car wreck six months ago. The wreck was not my fault. I had a back injury and now the doctor says I need surgery. The surgery will cost $40,000. I don’t really want surgery, but the pain is pretty bad and the doctor says it will get worse. Will I get more money for my personal injury case against the other driver if I have the surgery?
Well, I really do not think that should be a factor in whether or not you have surgery. You should have surgery based on medical advice. If you do not agree with your doctor’s opinion, seek the opinion of another doctor. But, make a decision about surgery based on whether or not you need surgery, not whether or not it will impact your case.
If you have surgery and the surgery is determined to have become necessary because of injuries in the wreck, the jury can and should include the cost of that surgery in the wreck. It can and should also include pain and suffering caused by the surgery and the wages you lost from work during the surgery and recovery process.
If you don’t have surgery the jury can still award you the medical expenses for the surgery that the doctor says will likely occur in the future. Likewise, the jury can award damages for the pain, suffering and lost wages that will result when that surgery occurs. Practically speaking, however, is that a jury may give that less weight because they might assume that the surgery will never occur.
If you don’t have the surgery you can recover damages for the pain and suffering, etc. you experience because of the back problem. However, the jury will be told that you have a duty to mitigate your damages, and if they believe you should have surgery and that will eliminate or substantially reduce your problems, they may not award you damages for future pain and suffering, etc. from your back injury.
As you can see, this is a complicated problem. My bottom line is that your health and well-being comes before a lawsuit, and you should seek the medical attention and advice you need to solve your medical issues.
John Day represents personal injury victims and families of wrongful death victims. He is board-certified as a civil trial specialist by the National Board of Trial Advocacy and, in fact, served as President of the organization. He is an elected member of the prestigious American College of Trial Lawyers. His book, "Day on Torts: Leading Cases in Tennessee Tort Law," is used by judges and lawyers across Tennessee to further their understanding of personal injury and wrongful death law in Tennessee. In 2009, Best Lawyers named John "Best Personal Injury Lawyer" for Nashville; he was the first recipient of that award. Best Lawyers also named John as "Best Medical Malpractice Lawyer in Nashville" for 2010. John does not charge for an initial consultation and accepts personal injury and wrongful death cases on a contingent fee basis. You can reach him by telephone at 615.742.4880 or by email by clicking here.