## Facts

- Lawrence J. Monahan went to a family-practice clinic owned by Obici Medical Management Services, Inc. after experiencing dizziness and double vision and appearing hot, sweaty, and unsteady.
- Clinic staff recorded extremely high blood pressure (about 200/95).
- A nurse practitioner examined Monahan, found a brief neurological exam normal, diagnosed a hypertensive crisis, provided blood-pressure medication samples, and documented follow-up advice.
- Monahan did not go immediately to an emergency room after leaving the clinic; later that day, his condition worsened and he was hospitalized and diagnosed with a stroke.
- Monahan sued for malpractice, alleging negligent failure to diagnose and treat an evolving stroke, causing permanent injury.
- Obici argued Monahan failed to mitigate damages by not promptly seeking emergency care and by his conduct after leaving the clinic.

## Issues

1. Whether a mitigation-of-damages instruction was warranted based on the evidence that Monahan unreasonably failed to minimize damages after the alleged malpractice.
2. Whether the trial court should have struck mitigation-related evidence offered to show Monahan’s alleged failure to mitigate.

## Decision

- The Supreme Court of Virginia held the mitigation instruction was given in error because the evidentiary foundation was legally insufficient.
- The Court held the trial court also erred in allowing certain mitigation-related evidence to go to the jury.
- The Court affirmed the liability determination against Obici but reversed the damages award and remanded for a new trial limited to damages.

## Legal Principles

- A mitigation-of-damages instruction is proper only when there is competent evidence that the plaintiff, after the defendant’s tort, failed to act with reasonable care and that this failure proximately caused a separable portion of the harm or aggravated the injury.
- The defendant bears the burden to prove mitigation, including (i) the availability of reasonable steps the plaintiff could have taken and (ii) a causal link showing the plaintiff’s omission materially increased damages beyond those caused by the defendant.
- Mitigation cannot rest on speculation; without non-speculative proof that different post-injury actions would have reduced the extent of injury, damages may not be reduced on mitigation grounds.
- An erroneous mitigation instruction is prejudicial when it is reasonably likely to have reduced the jury’s damages award, warranting a new trial on damages when liability is otherwise unaffected.

## Conclusion

Because the record lacked competent, non-speculative proof that Monahan’s failure to seek immediate emergency care caused an identifiable additional portion of his stroke-related damages, the mitigation instruction and related evidence were improper; the liability verdict stood, but the case was remanded for a new trial limited to damages.


Monahan v. Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 628 S.E.2d 330 (Va. 2006)