Social Security Forum
Volume 19, No. 3 - March, 1997
CONSULTATIVE DOCTOR COULD BE
LIABLE FOR MALPRACTICE FOR FAILURE TO DIAGNOSE A CONDITION HE SHOULD
HAVE DISCOVERED
The New
Jersey Appellate Division has found that a doctor retained by the Social
Security Administration to examine a claimant may be liable for
malpractice for failing to diagnose a condition which he should have
discovered. In Rainer v. Frieman, 294 N.J. Super 182 (App. Div.
1996) an ophthalmologist who was retained as a consultative doctor to
examine a Social Security disability claimant for alleged vision
problems, failed to diagnose a brain tumor. The court finds that the
examining physician has the duty to claimant to exercise reasonable
professional care in rendering a diagnosis, at least with respect to the
symptoms and complaints on which the disability claim was based
regardless of the lack of privity between them.
In
conjunction with the plaintiff’s second claim for benefits he was
referred to the defendant who found that he had some visual problems,
but was not unable to work. The plaintiff was denied benefits and did
not seek additional treatment for several months. Later, his own
ophthalmologist ran some of the same tests and referred him for an MRI
which revealed a large brain tumor which required radiation treatment.
As a result of the tumor, the plaintiff was finally awarded disability
benefits. The court rejects the doctor’s argument that the lack of a
traditional physician-patient relationship relieved him of a duty to the
plaintiff to render a professionally reasonable opinion. Instead, the
court holds that in a situation such as this, where the doctor has a
duty to the government to make a professionally competent diagnosis to
assure that disabled people are awarded benefits, privity is not
required as a prerequisite for the imposition of liability.
Without
determining whether or not the defendant was actually negligent, the
court hold that "when an examinee presents himself with specific
complaints that are the occasion for the third party reference for the
examination, the examining physician owes the examinee the duty of
examining and diagnosing the examinee in the same professional manner
and with the same professional skill and care as would be employed in
examining and diagnosing a ‘traditional’ patient with those complaints."
