A recent appeal court judgment has held that the state cannot offer free future medical treatment in lieu of paying monetary damages upfront. The state attempted to argue that by not accepting the offer of free healthcare services in the future, the claimant was failing to act reasonably to reduce her damages. Ordinarily, claimants are obliged to mitigate their damages or risk having their claim reduced. The court rejected the notion that declining the state’s offer constituted a failure to mitigate, and identified two main issues with the state’s stance. The first is that, in future, there may be a disagreement about whether the medical malpractice necessitated the treatment that the claimant required later. This violates the rule that all claims must be resolved once and for all. The second issue is that, fundamentally, our law requires damages awards to be paid in money. To order otherwise would require the law to be developed, but this kind of development, the court held, was be...
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