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Selective Insurance Company of America v. Arthur C. Rothman

January 18, 2012

SELECTIVE INSURANCE COMPANY OF AMERICA, PLAINTIFF-RESPONDENT,
v.
ARTHUR C. ROTHMAN, M.D., PH.D., P.A., A/S/O D.R., DEFENDANT-APPELLANT. DR. ARTHUR C. ROTHMAN, A/S/O D.R., PLAINTIFF,
v.
SELECTIVE INSURANCE COMPANY DEFENDANT. ARTHUR C. ROTHMAN, M.D., PH.D., P.A., PLAINTIFF,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at Per curiam.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Selective Insurance Company of America v. Arthur C. Rothman,

M.D. (A-60-10) (066630)

Argued October 12, 2011

Decided January 18, 2012

Corrected January 19, 2012

PER CURIAM

In this appeal, the Court considers a challenge to the Appellate Division's conclusion that a licensed Physician Assistant (PA) is not authorized to perform the electrodiagnostic test known as needle electromyography (EMG). In addition, the Court considers whether the Appellate Division erred in refusing to direct that its judgment be given only prospective effect.

Plaintiff Selective Insurance Company presented this matter to the Appellate Division through its appeals from the trial court's decisions in three related disputes. Each of the underlying disputes arose as a result of treatment 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 and prevailed. Defendant sought confirmation of the arbitration award in the Law Division. In addition, he initiated a proceeding in the Chancery Division to secure a declaration that PAs are authorized to perform EMGs; that complaint was transferred to the Law Division. In a consolidated opinion, the trial court affirmed the arbitration award and ruled that PAs are authorized to perform EMGs.

On July 13, 2010, the Appellate Division issued a published opinion reversing the trial court's orders. The Appellate Division thereafter denied reconsideration, declining to address defendant's request that the panel direct that its judgment be given only prospective application.

The Supreme Court granted defendant's petition for certification.

HELD: Physician Assistants are not authorized to perform the electrodiagnostic test known as needle electromyography (EMG). The Court declines to consider defendant's application that its decision be given only prospective effect.

1. 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." Selective Insurance Co. v. Rothman, 414 N.J. Super. 331, 337 (App. Div. 2010) (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 healthcare professionals other than PAs. Defendant's suggestion that a PA can perform a needle EMG based on the statutory authorization for a PA to "assist" a physician is flawed. Finally, the Court concurs with the panel's rejection of defendant's arguments that the Board of Medical Examiners has in some fashion authorized PAs to perform needle EMGs. The Board has never adopted regulations or acted with sufficient clarity to overcome the statutory limitations on the procedures that a PA is authorized to perform. (pp. 4-6)

2. Decisions arising in the context of civil litigation are ordinarily given retroactive application. Limiting a judgment to "prospective application is appropriate when (1) the decision establishes a new rule of law, by either overruling past precedent or deciding an issue of first impression, and (2) when retroactive application could produce substantial inequitable results." Velez v. City of Jersey City, 180 N.J. 284, 297 (2004). The record before the Court is largely devoid of evidence of the type needed to engage in any meaningful analysis of whether the Court's judgment in this matter should be given retroactive or prospective effect. Moreover, defendant will be afforded ample opportunities in any pending matters to create an adequate record upon which the question of retroactivity may appropriately be decided. The Court thus declines to consider defendant's application that its decision be given only prospective effect. (pp. 6-10)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, HOENS, PATTERSON, and JUDGE WEFING (temporarily assigned) join in this opinion. ...


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