No. Normally in negligence all three things needs to be proved

• There was an element of duty to be performed
• There was breach of duty
• Resultant damage

If the patient is not been harmed by the physician’s error, the patient can’t claim damages as the result of the error. For instance, if a doctor misdiagnoses stomach pain as caused by appendicitis, and surgery reveals that it was due to a perforated ulcer, if the patient would have required the surgery to repair the ulcer, the patient will probably not be able to bring a lawsuit, as the surgery was necessary even with the correct diagnosis. However, if the patient was only suffering from indigestion, an unnecessary surgery most likely supports a malpractice action.

However there is a loophole, the patient can always include mental agony as damage.