Consultative Doctor Could Be Liable for Malpractice for Failure to Diagnose a Condition He Should have Discovered

Social Security Forum
Volume 19, No. 3 – March, 1997

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.”

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