What is the test for determining whether a plaintiff is entitled to damages for refusing to undergo a recommended treatment?

The law as articulated in Janiak v. Ippolito, supra and Cochrane v. O’Brien, [2002] N.J. No. 363 makes it clear that if a court finds that a plaintiff is unreasonably refusing to undergo the recommended surgery or treatment, any damages need to be discounted to reflect the chance that the treatment would have been successful. He or she is only entitled to recover those losses that were unavoidable even if the treatment was performed. Further, if a court finds that the refusal of treatment is unreasonable the court must determine what damages are avoidable by assuming that the plaintiff has agreed to the recommended treatment and then take into account any substantial possibility of failure. The amount by which the damages are discounted represents the avoidable loss. Even if a court cannot determine the mathematical odds for the likelihood of surgical success, it does not prevent a finding that there was a failure to mitigate. The court must estimate the value of the chance that the treatment would have reduced or eliminated the plaintiff’s loss.

The determination of the reasonableness of the refusal of a plaintiff to undergo recommended surgery or other treatment must also take into account whether there is conflicting expert opinion on the advisability of receiving a particular course of treatment as reasonable, again to be determined on an objective basis. In Janiak v. Ippolito, the court dealt with this issue by reference to a number of English cases. The court concluded that as long as a plaintiff follows any one of several courses of treatment recommended by the medical advisors, he or she should not be said to have acted unreasonably, taking into account the degree of risk to the plaintiff from the surgery or other recommended treatment, the gravity of the consequences of refusing it and the potential benefit to the plaintiff by having it.