Selective Ins. Co. of America v. Rothman

• Decision Date: 19 January 2012
• Citation: 34 A.3d 769,208 N.J. 580
• Parties: 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.
• Court: New Jersey Supreme Court

208 N.J. 580

34 A.3d 769

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.

Supreme Court of New Jersey.

Argued Oct. 12, 2011.Decided Jan. 18, 2012.As Corrected Jan. 19, 2012.

William Harla argued the cause for appellant (DeCotiis, Fitzpatrick & Cole and Kalison, McBride, Jackson & Robertson, attorneys; Mr. Harla, Teaneck, Robert B. Hille, James A. Robertson, John W. Kaveney, Morristown, Victoria A. Flynn, and Irene Stavrellis, Teaneck, on the briefs).

Gordon S. Graber argued the cause for respondent (Sullivan and Graber, attorneys; Mr. Graber and Chryzanta K. Hentisz, Morristown, on the brief).

Arthur J. Timins, Roseland, submitted a brief on behalf of amicus curiae Medical Society of New Jersey (Shiriak & Timins, attorneys).PER CURIAM.

We granted certification in this appeal to address two issues. First, we consider 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). Second, we consider whether the Appellate Division erred in refusing to direct that its judgment be given only prospective effect.

I.

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. See N.J.S.A. 39:6A–5.1. 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; that complaint was transferred to the Law Division. In a consolidated opinion, 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.

Following its decision to consolidate the three matters for purposes of the appeal, the Appellate Division issued its published opinion reversing the orders of the trial court. Selective Ins. Co. v. Rothman, 414 N.J.Super. 331, 338–42, 998 A.2d 523 (App.Div.2010). The Appellate Division thereafter denied defendant's motion for reconsideration, declining to address defendant's request that the panel direct that its judgment be given only prospective application.

We granted defendant's petition for certification, 205 N.J. 80, 12 A.3d 212 (2011), and we thereafter granted leave to the American Medical Association and the Medical Society of New Jersey to appear as amici curiae.

A.

Defendant's substantive arguments directed to whether PAs are authorized to perform needle EMGs are fully set forth in the Appellate Division's opinion, Selective Ins., supra, 414 N.J.Super. at 335–40, 998 A.2d 523, as a result of which we need not recite them in detail. Nor need we expand upon the thorough and scholarly analysis of those issues on which Judge Yannotti, writing for the appellate panel, based the court's conclusions and judgment.

As Judge Yannotti's opinion amply explains, 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.” Id. at 337, 998 A.2d 523 (quoting N.J.S.A. 45:9–5.2(a)). Although the statutory provisions governing licensing of PAs are found in that Title and chapter, see Physician Assistant Licensing Act (PALA), N.J.S.A. 45:9–27.10 to –27.28, PAs do not qualify for, nor do they receive, a plenary license to practice medicine, see N.J.S.A. 45:9–27.11 (distinguishing by definition between physician and PA); N.J.S.A. 45:9–27.16 (listing procedures that PAs are authorized to perform).

Moreover, 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). 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.

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 also would expand the authority given to PAs well beyond the boundaries that the statute established.

Finally, we concur 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. Although the Board is statutorily authorized to adopt regulations, N.J.S.A. 45:9–27.24(b), the only relevant one it has promulgated lists authorized procedures, but does not include an EMG among them, see N.J.A.C. 13:35–2B.4(b)(6). The Board, by approving minutes of the PA Advisory Committee that referred to performance of EMGs, did not thereby adopt regulations or act with sufficient clarity to overcome the statutory limitations on the procedures that a PA is authorized to perform.

In short, we affirm the judgment of the Appellate Division on the central question raised in this appeal substantially for the reasons expressed in Judge Yannotti's thorough and persuasive opinion.

B.

In addition to the substantive question, defendant's petition for certification asked this Court to review the appellate panel's denial of his motion for reconsideration, through which he asked the panel to give its judgment prospective application only. The Appellate Division denied that motion in an order, which explained that the issue had not been raised during the appeal and therefore would not be addressed. Following this Court's decision to grant plaintiff's petition for certification, however, we granted defendant's motion to supplement the record with his attorney's certification that the issue about limiting any adverse ruling to prospective application was raised during the oral argument on appeal.

Apart from asserting that the Appellate Division was mistaken in concluding that the issue of retroactivity had not been raised as part of the appeal, defendant urges this Court to limit the effect of any adverse determination in order to prevent a manifest injustice. More specifically, defendant argues that this decision, which is a matter of first impression, should not be applied retroactively in light of the reasonable reliance by defendant and others on the plausible interpretations taken by the PA Advisory Committee and the Board's approval of that body's minutes. Further, he contends that refusing to limit the appellate panel's judgment to prospective application will unjustly expose him to litigation by insurers seeking to recover sums previously paid for EMGs performed by PAs, to allegations that the submission of such claims for payment constitutes...