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In order to support a failure to-mitigate claim, initially, there must be substantial evidence that there was something that the plaintiff could do to mitigate his loss and that requiring the plaintiff to do so was reasonable under the circumstances. Furthermore, it must be shown that the plaintiff acted unreasonably in failing to undertake the mitigating activity. Iowa Code § 668.1(1). An injured person is under no absolute obligation to follow the advice of his physician in order to minimize his damages. His duty in this respect is to use ordinary care in the matter of following such advice. The defendant has the burden of demonstrating that the failure to mitigate was unreasonable under the circumstances.
On December 12, 1995, a vehicle driven by Mitchell struck Greenwood on his right side as Greenwood attempted to dive out of the way of the Mitchell vehicle as it left the street and careened onto the sidewalk. Greenwood experienced pain in his right arm and shoulder and left leg immediately after the accident. He was examined in the emergency room of a local hospital and conservative treatment was ordered. When conservative treatment did not alleviate Greenwood's complaints, he was referred to an orthopedist, Robert Breedlove, M.D. Dr. Breedlove diagnosed Greenwood as having "chronic impingement syndrome, right shoulder secondary to motor vehicle accident." On May 10, 1996, upon Dr. Breedlove's recommendation, Greenwood had an "operative arthroscopy and decompression of his shoulder" on an outpatient basis. Greenwood's post-operative course was uneventful and approximately three weeks post-surgery Dr. Breedlove released Greenwood to light duty. He also referred Greenwood to a physical therapist to begin a range-of-motion and strengthening regimen. At the initial therapy evaluation, the physical therapist concluded that Greenwood suffered from decreased range of motion and strength. He set two goals for Greenwood: (1) equal strength and motion in his shoulders; and (2) a pain-free state. In June 1996, Greenwood's physical therapist released Greenwood from treatment and advised him to continue with a home exercise program. Dr. Breedlove allowed Greenwood to return to full work duty as of July 1, 1996, noting that Greenwood was experiencing only occasional discomfort. In June 1997, Greenwood returned to Dr. Breedlove for reevaluation of his right shoulder. He complained that for the past six months he had "noticed continued discomfort [when] lifting heavy objects . . . and [when] doing push-ups and general physical therapy." He also complained of occasional arm numbness and weakness. Dr. Breedlove referred Greenwood to a second physical therapist, Thomas Bower, for further testing and an impairment rating. During Greenwood's initial visit with Bower, Bower outlined Greenwood's medical history as it related to the right shoulder problem. In pertinent part, Bower's records stated that he “did reasonably well following the decompression but apparently was not given any good home program of exercise.” On follow-up with Dr. Breedlove, the doctor "felt that [Greenwood] was significantly better than he was preoperatively, but that he may always have constant irritation with respect to his right shoulder." Dr. Breedlove did not impose any physical restrictions on Greenwood and advised Greenwood to see him in the future on an as-needed basis. In August 1998 Greenwood saw his family physician after he strained his left shoulder while lifting some heavy radios at work. The doctor noted that Greenwood "continues to have pain and stiffness in his right shoulder."
In December 1997 Greenwood filed suit against Mitchell seeking damages for the injuries he sustained in the accident of December 1995. Mitchell answered, claiming that his actions were not a proximate cause of any of Greenwood's injuries. The case was set for trial on February 1, 1999. On the morning of trial, the defendant admitted fault for the accident, but continued to deny that the accident was a proximate cause of Greenwood's injuries. Upon completion of their deliberations, the jurors returned a verdict in which it found both parties at fault and found both to be a proximate cause of damage to Greenwood. The court then entered a judgment in favor of the defendant. Greenwood filed a motion for new trial, but the court denied the same.
Was Mitchell able to introduce substantial evidence to prove that Greenwood's failure to continue his home exercise program was unreasonable?
Greenwood's first physical therapist prescribed a home exercise program upon Greenwood's completion of physical therapy in June 1996. Greenwood testified he followed the program "for quite a while," but quit when he felt "it wasn't doing any good." Mitchell’s expert medical witness testified that at a point between six to twelve weeks post-surgery, Greenwood's condition "really wouldn't change that much." When asked about physical therapy in the future, the expert testified that Greenwood could do a home exercise program "if that is needed." Conspicuously absent from the record is any testimony that Greenwood's failure to continue his home exercise regimen in perpetuity was unreasonable. Nor is there any expert testimony that Greenwood's continuation of home exercises would have prevented certain damages. Mitchell relied on a letter from physical therapist Bower to Dr. Breedlove in which Bower stated he has given Greenwood "a couple of exercises that should help decrease some of the discomfort" and that while he is "hopeful that through exercise . . . this pain will reduce, [Greenwood] is still very likely going to be limited in some activities overhead." This testimony was too uncertain to support submission of Mitchell’s failure-to-mitigate claim. Mitchell also relied on an entry in records of the original physical therapist that stated the goals of therapy had been accomplished upon Greenwood's release from physical therapy. Those goals were equal strength and motion in Greenwood's shoulders and a pain-free state. Mitchell argued that the jury could conclude from this evidence that if Greenwood had continued his home exercises, he would have had no continuing problems. However, this inference could be drawn without the assistance of expert testimony. It was equally possible that the recurrence of shoulder problems was a natural consequence of Greenwood’s injury, or that his subsequent problems were such that home exercise would not have completely alleviated them. Simply stated, Mitchell’s case lacked expert testimony that Greenwood's subsequent symptoms were caused by his failure to follow his home exercise program.