Can you sue for malpractice without an actual injury?

A friend of mine was pulled over by the CHP for suspicion of drunk driving. He was arrested and refused a field breathalyzer test. At the station he refused a breath and blood alcohol test. The CHP called in a phlebotamist to draw blood without consent. While attempting to locate a vein, the phlebotamist touched the needle insertion site with his gloved hand after sterilization (meaning the site was no longer sterile creating risk of a staph infection). This was discovered upon review of a video tape recording taken by the CHP. Ultimately no infection resulted from use of improper procedure. Is there ground here for a civil lawsuit for something similar to malpractice, even though no infection resulted from the draw?

Asked on August 27, 2013 under Malpractice Law, California


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

A personal injury claim and / or medical malpractice claim would require an injury caused by a negligent act.  The injury would result in damages (monetary compensation) which would include the medical bills, pain and suffering, and wage loss.  Without an injury, there isn't any claim because there aren't any damages to recover since there are no medical bills, pain and suffering, wage loss, etc.

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