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Brodie v. State Board of Medical Examiners

Decided: February 27, 1981.

MARVIN BRODIE, M.D., MARK MISHKIN, M.D., RADIOLOGICAL SOCIETY OF NEW JERSEY AND MEDICAL SOCIETY OF NEW JERSEY, APPELLANTS,
v.
STATE BOARD OF MEDICAL EXAMINERS OF THE STATE OF NEW JERSEY, RESPONDENT



On appeal from a rule promulgated by the State Board of Medical Examiners.

Bischoff, Milmed and Francis. The opinion of the court was delivered by Milmed, J.A.D.

Milmed

This appeal brings up for review the validity of a rule promulgated by the State Board of Medical Examiners (Board) which requires physicians who are licensed to practice medicine and surgery and who provide diagnostic radiological services for other physicians so licensed, to provide to licensed chiropractors, upon their request, diagnostic radiological services "without discrimination on the basis of classification of license," provided the services requested pertain to skeletal areas of the body. Denial of such professional diagnostic radiological services constitutes "purposeful and intentional discrimination and may subject the [radiologist] to appropriate disciplinary action by the Board of Medical Examiners." Appellants' applications, both to this court and to our Supreme Court, to stay the effectiveness of the rule pending appeal, were denied.

Appellants contend that the rule, which became effective August 5, 1980 and is now N.J.A.C. 13:35-6.18, (a) "interferes impermissibly with the constitutional right of practitioners of medicine and surgery to contract freely for their professional services"; (b) "interferes unduly with the right of radiologists to exercise their independent professional judgment"; (c) "abridges the right of privacy enjoyed by radiologists"; (d) "is invalid since [the Board of Medical Examiners] adopted it pursuant to an unconstitutionally excessive delegation of power," and (e) was promulgated by the Board acting "beyond its enabling authority." They also contend that the adoption of the rule was "in the nature of a contested case" and thus required, prior to promulgation, "a full and proper hearing." And, they further claim the support of "scientific studies" for "the belief of radiologists that accepting referrals from chiropractors is detrimental to the public health." We find no merit in any of these contentions.

The situation which ultimately led to the adoption of the rule is clearly described in a March 28, 1980 letter from Dr. Edwin H. Albano, President of the State Board of Medical Examiners, to

counsel for appellants. The letter was written after one of the appellants, Dr. Marvin Brodie, a radiologist, had testified at a Board hearing regarding its inquiry into certain practices of Monmouth Radiologists, a professional association of medical and osteopathic physicians, and two of its members, Dr. Brodie and Dr. Irving H. Stein. Dr. Albano wrote:

The New Jersey State Board of Medical Examiners has made informal inquiry of the practice of Monmouth Radiologists, Dr. Brodie and Dr. Stein respecting allegations by individual patients and by the Division of Medical Assistance and Health Services, as well as by individual chiropractic physicians of the State of New Jersey, that the physicians have arbitrarily refused requests for radiological diagnostic services for patients when those patients are referred by a chiropractic physician. The refusals of referrals were alleged to be arbitrary and based entirely upon the referring physicians status as chiropractors.

In this appearance before the Board on March 12, 1980, Dr. Brodie has asserted that he does accept Medicaid patients who are referred by doctors of medicine or doctors of osteopathy but that he would refuse a referral from a chiropractor because he does not believe that chiropractors, as a class, to be sufficiently knowledgeable to understand the reports he will prepare or to be competent to render subsequent treatment to the patients, or to be responsible enough to refer matters outside of a chiropractor's scope of practice to another physician or specialist in the appropriate area. Dr. Brodie has advised that this is the general policy of Monmouth Radiologists and that the secretaries and receptionists are instructed accordingly to refuse any direct or indirect referrals from chiropractors for these reasons.

Dr. Brodie has also advised that Monmouth Radiologists accepts requests from plenary licensed physicians for specified diagnostic procedures and also accepts referrals where the radiologists themselves will determine the appropriate procedures. Dr. Bodie asserted further that where, in his own judgment, the pathology uncovered may not be appropriately treated by the referring physician, he will indicate to the referrer the problem areas involved and will rely upon the proper professional and responsible judgment of the referring physician to in turn refer the patient to a specialist. He further advises that he bills his patients directly for the services rendered by the radiological group.

The Board has considered the allegations informally presented and the explanation of Monmouth Radiologists and of their attorney, and concludes as follows:

Chiropractors (as well as podiatrists) are licensed health care professionals in the State of New Jersey, whose professional services are under the specific jurisdiction of the New Jersey State Board of Medical Examiners. The Board is responsible for monitoring the activities of both plenary and limited licensees and insuring that the latter provide services only within their ...


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