There are several things that would have to occur to make this a successful suit.
First of all, it requires a bad relationship with the patient. In this case, it was fully explained to the patient, and the procedure to correct the problem was immediately arranged. The patient seemed very understanding. For the second reason we need to go to my lawyer buddies.
A tort is a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability. There are four elements of a tort as I understand it
- Duty
- Breach of Duty
- Damages/Harm
- Causation
If all four are not present a tort should not be successful. In this case, there was a duty, and that duty was definitely breached. Most of the time, the act in question does not involve arguing breach of duty, it is assumed to have happened. There also needs to be damages or harm associated with the breach of duty, and the damages must be caused by the breach of duty. If there is no damages, there is no tort. If there are damages, but no causation, there is no tort. In this case, there were no damages to the patient other than having to go through the corrective procedure. So there should no sucesful tort possible.
PS. Hmmm...
looking through my visitor statistics, apparently I'm the 27th choice for a google search of the movie SuperSize Me. Interesting.
