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Can one claim damage of a mistake not ending up in damage?

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Dr KK Aggarwal and Ms Ira Gupta    01 March 2018

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

  1. There was an element of duty to be performed
  2. There was breach of duty
  3. Resultant damage

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

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

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