How Refusing Medical Treatment Affects Your Car Accident Claim in New York

When you are injured in a car accident in New York, your legal obligation does not end with filing a claim. Under New York personal injury law, injured plaintiffs have a duty to take reasonable steps to minimize their own damages. This is the duty to mitigate — and failing to comply with it can significantly reduce the compensation you receive for your injuries.

This article explains how the duty to mitigate works in New York car accident cases, how defense attorneys use treatment refusal against plaintiffs at trial, and what you can do to protect your claim even if you have concerns about recommended medical treatment.

The Avoidable Consequences Doctrine: New York’s Mitigation Rule

New York follows the avoidable consequences doctrine, which provides that a plaintiff who sustains personal injury must take reasonable steps to minimize the consequences of that injury. An injured person cannot refuse all treatment, allow their injuries to worsen unnecessarily, and then demand full compensation for the resulting harm — including harm that could have been prevented with reasonable medical care.

This doctrine is codified in New York Pattern Jury Instruction (PJI) 2:325, which instructs the jury that a plaintiff has a duty to use reasonable means to minimize the damages flowing from the defendant’s negligence. If the plaintiff unreasonably fails to minimize damages, the jury must reduce the award by the amount the plaintiff could have avoided through reasonable conduct.

It is important to understand what this doctrine does and does not do. The avoidable consequences doctrine does not eliminate your right to recovery — it only reduces damages to the extent your own unreasonable inaction increased them. The baseline harm caused by the defendant remains compensable; only the avoidable increment is reduced. However, in serious injury cases where surgery could have improved outcomes dramatically, the reduction can be substantial.

What “Refusing Treatment” Means in This Context

Treatment refusal in the damages-mitigation context is not limited to dramatic decisions like refusing emergency surgery. Defense counsel interprets the duty to mitigate broadly to include:

• Refusing recommended elective surgery — a spine surgeon recommends a fusion procedure; the plaintiff declines
• Refusing or abandoning physical therapy — attending only a few sessions before stopping, despite a prescribed course of treatment
• Stopping treatment prematurely — discharging yourself from care before reaching maximum medical improvement (MMI)
• Refusing diagnostic testing — declining MRI, EMG/nerve conduction studies, or other imaging that would document injury severity
• Failure to take prescribed medications — not filling prescriptions or stopping medications for pain management, nerve pain, or anti-inflammatory therapy
• Ignoring physician discharge instructions — failing to comply with lifting restrictions, activity modifications, or follow-up appointment schedules

Each of these forms of non-compliance is documented in the medical records and will be highlighted by defense counsel at trial or in pre-trial motions.

How Defense Attorneys Use Treatment Refusal at Trial

At trial, defense counsel will argue that the plaintiff’s refusal to follow recommended treatment broke the chain of causation between the defendant’s negligence and at least a portion of the plaintiff’s ongoing damages. The argument follows a predictable pattern:

“If the plaintiff had undergone the recommended lumbar fusion surgery, her expert spine surgeon testified she would have had a 70 to 80 percent chance of significant pain relief and return to work. By refusing surgery, the plaintiff chose to continue suffering pain that could have been treated. The defendant should not be required to pay for years of pain and lost income that the plaintiff herself elected to endure.”

This argument does not require the defense to prove the surgery would have been a complete success — only that it offered a reasonable probability of improvement that the plaintiff unreasonably rejected. Even a partial reduction in the damages award can cost a plaintiff hundreds of thousands of dollars in pain and suffering compensation and lost wage recovery.

The “Fear of Surgery” Defense Against Mitigation

New York courts have recognized that a plaintiff’s genuine and reasonable fear of surgery is a valid excuse for declining a recommended procedure. The fear cannot be fabricated or pretextual — it must be:

1. Subjectively genuine — the plaintiff actually experiences fear of the procedure, not merely a preference to avoid it
2. Objectively reasonable — a reasonable person in the plaintiff’s circumstances could reasonably share that fear given the nature of the procedure, its risks, and the plaintiff’s particular medical history

Under the PJI 2:325 notes, the jury must evaluate whether the plaintiff’s refusal was reasonable under all the circumstances. Factors relevant to the reasonableness of surgical fear include: the complexity of the proposed surgery, the anesthesia risk, the plaintiff’s prior surgical history, the success rate of the procedure, the complication rate, the expected recovery period, and whether the plaintiff’s treating physicians expressed any disagreement about surgical necessity.

If a proposed surgery carries a significant risk of paralysis, permanent nerve injury, or other severe complication, a jury is far more likely to find that the plaintiff’s fear was reasonable. Conversely, if the recommended procedure is routine with an extremely high success rate and minimal complication risk, fear alone may not suffice.

How to Protect Yourself If You Are Declining Recommended Surgery

If you have genuine concerns about a recommended procedure, there are steps you can take to document your position and protect your legal claim:

Document your reasoning in the medical record. At your appointment, tell your doctor explicitly why you are declining the surgery — the specific risks that concern you, your prior medical history, your fear of general anesthesia, or other factors. The physician should document this conversation in the chart. A medical record that reflects a thorough informed consent discussion and the patient’s documented concerns is far harder for defense counsel to attack than a medical record that simply shows “patient declined surgery.”

Get a second opinion. If one surgeon recommends surgery and another reputable spine surgeon agrees the injury can be managed conservatively, your refusal of surgery is significantly strengthened. Differing expert opinions about surgical necessity undercut the defense’s ability to prove that surgery was the only reasonable course of action.

Religious and deeply held personal objections. New York courts have recognized that sincerely held religious beliefs about medical treatment can constitute a valid reason for declining surgery. This defense is available but requires genuine documentation — it cannot be raised for the first time at trial as an afterthought.

Financial inability. A plaintiff who cannot afford a recommended surgery because of lack of insurance coverage or financial hardship has a partial defense to the failure-to-mitigate argument. However, you should discuss this with your attorney immediately — there may be options including medical liens or healthcare providers willing to defer payment until case resolution.

When Refusing Surgery Is Not Against Your Interests

Not all recommended surgeries are clearly indicated, and not all refusals are unreasonable. The duty to mitigate requires only reasonable steps — not heroic ones, and not compliance with every surgical recommendation regardless of the evidence base.

Circumstances where refusing surgery may be legally defensible include:

• Uncertain surgical outcomes — some spinal surgeries have only modest expected improvement in pain or function, particularly for soft-tissue or degenerative conditions where the structural basis for the recommendation is disputed
• High complication rates — surgeries with significant rates of serious adverse outcomes impose a greater burden on the plaintiff to accept them
• Physician disagreement about necessity — when the plaintiff’s own treating physicians disagree about whether surgery is indicated, no reasonable jury should find that declining surgery was unreasonable

It is also critical to understand the burden of proof. The defendant bears the burden of proving that the plaintiff’s failure to mitigate was unreasonable. (Hecht v. City of New York, 60 NY2d 57 [1983].) The plaintiff does not need to affirmatively justify every treatment decision. The defense must establish, by competent evidence, that a reasonable person in the plaintiff’s circumstances would have undergone the treatment and that doing so would have reduced damages. If the defense cannot meet that burden, the mitigation argument fails.

Treatment Gaps vs. Treatment Refusal: An Important Distinction

A treatment gap — a period during which the plaintiff stopped receiving treatment and then resumed — is a related but distinct issue from outright treatment refusal. Gaps in treatment are frequently used by insurance companies to argue that the plaintiff’s injuries were not as serious as claimed (the theory being: if you were really hurt, you would have kept treating). This argument is addressed separately in our guide to gap-in-treatment defenses.

Treatment refusal, by contrast, refers to a persistent and ongoing decision not to pursue a recommended course of care. A plaintiff who attends physical therapy for three months, stops for six weeks due to a family emergency, and then resumes has a treatment gap — a manageable issue with the right documentation. A plaintiff who attends three physical therapy sessions and then refuses all further conservative care for a year has engaged in conduct that approaches outright refusal and is significantly more damaging to the claim.

No-Fault Insurance, IMEs, and Forced Termination of Treatment

New York’s no-fault insurance system adds a significant wrinkle to the treatment-refusal analysis. No-fault carriers routinely schedule Independent Medical Examinations (IMEs) — examinations performed by physicians hired by the insurance company — and use the IME doctor’s opinion to terminate no-fault payment for ongoing medical treatment.

When a no-fault IME doctor opines that “no further treatment is medically necessary” and the carrier cuts off payment, injured plaintiffs are placed in an impossible position: continue treating out-of-pocket (which most cannot afford) or stop treatment entirely. If they stop treating because they cannot afford to pay, the defense can argue at trial that treatment refusal constitutes a failure to mitigate.

This is one of the most abusive aspects of the no-fault system, and it is critical to challenge IME cutoffs promptly through the no-fault arbitration system. Your attorney can file for no-fault arbitration to contest the IME determination, request peer review of the IME opinion, and obtain a ruling compelling reinstatement of no-fault benefits. Do not simply accept an IME cutoff as final — this is a litigable issue with established procedures for challenge.

Medication Compliance and the Duty to Mitigate

Failure to take prescribed medications is a form of treatment non-compliance that defense counsel uses at trial. If a pain management physician prescribed a nerve medication (such as gabapentin) for neuropathic pain and the plaintiff chose not to fill the prescription or stopped taking it without physician guidance, the defense will argue that the plaintiff’s ongoing pain is self-inflicted — that is, a consequence of their own failure to treat rather than the defendant’s negligence.

If you are experiencing side effects from a prescribed medication, the correct course of action is to tell your doctor and have the medication adjusted, substituted, or discontinued with appropriate documentation — not to simply stop taking it without notifying your physician. Documented medication changes driven by physician decision-making are defensible. Undocumented, unilateral decisions to stop medication are not.

Practical Guidance for Injured Plaintiffs

The single most important principle is: follow all recommended treatment unless you have a documented, medically sound reason not to. If you have concerns about a recommended procedure, surgery, or medication, discuss them with both your doctor and your attorney before making any decision. Never tell your doctor you do not want treatment without first consulting with your attorney about the potential legal consequences.

Specific steps to protect your claim:

• Follow your physician’s treatment plan, attend all scheduled appointments, and complete all prescribed courses of physical therapy
• If you cannot afford a treatment, contact your attorney immediately — there may be options for covering costs on a lien basis
• Document every recommendation your doctor makes and your response; if you decline a recommendation, make sure the reason is in the chart
• If recommended for surgery, get a second opinion before deciding — having multiple physician opinions documented strengthens any decision you make
• If your no-fault carrier cuts off benefits, do not simply stop treating — challenge the IME cutoff through no-fault arbitration with your attorney’s assistance
• Never discuss your decision to decline treatment on social media; defense counsel monitors plaintiff social media accounts

If you have been injured in a car accident on Long Island and have questions about how your treatment decisions may affect your claim, contact our Long Island car accident lawyer team for a free consultation. We will review your treatment record, identify any gaps or refusals that need to be addressed, and develop a strategy to protect the full value of your claim.