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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.