Selective Insurance Company of America v. Arthur C. Rothman, M.D., 208 N.J. 580 (2012)

Physician Assistants (PAs) are not authorized to perform the electrodiagnostic test known as needle electromyography (EMG).

In this New Jersey Supreme Court action, the Court affirmed the Appellate Division's determination in Selective Ins. Co. of Am. v. Rothman, 414 N.J. Super. 331 (App. Div. 2010). In affirming the Appellate Division, the Supreme Court essentially adopted the language of the appellate court. Specifically, the Court provided the following:

[t]he plain language of the governing statute limits performance of EMGs to those who are licensed to 'practice medicine and surgery in this State pursuant to chapter 9 of Title 45 of the Revised Statutes.' (quoting N.J.S.A. 45:9-5.2(a))….PAs do not qualify for, nor do they receive, a plenary license to practice medicine…

Moreover, the statute generally authorizing performance of EMGs refers only to health care professionals other than PAs. See N.J.S.A. 45:9-5.2(a) (referring to performance of EMGs by individuals licensed to practice medicine and surgery, audiology and chiropractic). As the Appellate Division reasoned, neither the plain wording of that statute nor its legislative history suggests that the legislature intended to include PAs when it did not do so explicitly.

The defendant's suggestion that a PA can perform a needle EMG based on the statutory authorization for a PA to "assist" a physician, N.J.S.A. 45:9-27.16(b)(1), is similarly flawed. That approach, which requires a reading of the word "assist" that would equate it with "perform in the place of," would not only be contrary to the clear word that the legislature chose, but it also would expand the authority given to PAs well beyond the boundaries that the statute established.

This Supreme Court holding is significant insofar as it verifies that the performance of a needle EMG by anyone other than those persons licensed to practice medicine and surgery in the state of New Jersey is unlawful.

Case Law Alert - 4th Qtr 2012