A Professional License Defense Sample Case

SELECTIVE INSURANCE COMPANY OF AMERICA, Plaintiff-Respondent,

v. ARTHUR C. ROTHMAN, M.D.,Procedural History:
This dispute arose as a result of the electrodiagnostic test known as needle electromyography (EMG) that defendant, Arthur Rothman, M.D., rendered to an auto accident victim and for which defendant submitted personal injury protection (PIP) claims to plaintiff as the accident victim’s subrogee.

When plaintiff declined to pay claims for EMG tests it asserted had been performed by defendant’s PA, defendant pursued PIP arbitration. After defendant prevailed in that forum, he filed a complaint in the Law Division to confirm the arbitration award. He also initiated a proceeding in the Chancery Division to secure a declaration that PAs are authorized to perform EMGs. The trial court denied plaintiff’s motion to vacate the arbitration award, entered judgment in defendant’s favor confirming the arbitration award and issued the declaration defendant requested. The Appellate Division reversed. Defendant appealed. The Supreme Court affirmed.

Analysis:
The 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. N.J.S.A. 45:9–5.2(a). PAs do not qualify for, nor do they receive, a plenary license to practice medicine. N.J.S.A. 45:9–27.11 (distinguishing by definition between physician and PA). The statute generally authorizing performance of EMGs refers only to healthcare 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).

The court rejected Defendant’s argument 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) and said that such reading equates the word “assist” with “perform in the place of,” which is contrary to the clear word that the Legislature chose but also would expand the authority given to PAs well beyond the boundaries that the statute established.