John needed surgery on his right elbow. When the anesthesia wore off after the operation, he noticed surgical wrapping around both elbows, When he asked the nurse why both elbows were wrapped, the nurse replied that the surgeon made an incision on his left elbow, discovered the mistake, and proceeded with the operation on the right elbow. What modification of the law of negligence will John probably be able to invoke to recover damages from the surgeon and why?