Physician assistants can't do needle EMG tests, N.J. top court rules

Physician assistants no longer can perform needle electromyography after the Supreme Court of New Jersey ruled that the procedure improperly extends PAs' scope of practice.

The opinion ends a legal conflict regarding what the New Jersey Legislature intended when it said licensed medical professionals could perform such procedures.

"The Supreme Court upheld the appellate decision, basically narrowing the [trial] court's broad opinion," said Larry Downs, chief executive officer and general counsel for the Medical Society of New Jersey. If the court had reversed, "physician assistants would have had an equal scope of practice without the similar background and training" of licensed physicians, he said.

Neurologist Arthur C. Rothman, MD, sued Selective Insurance Co. of America in 2008, after it refused to pay a claim for electrodiagnostic tests that a physician assistant performed in his office. The insurer said it wouldn't pay because the physician did not conduct the needle EMG test and the PA was not legally authorized to do it.

Dr. Rothman argued that there are two parts to the test: compiling the data and interpreting it. The PA collected the data and Dr. Rothman interpreted it, according to court documents.

A trial judge ruled for Dr. Rothman, saying the New Jersey Medicine and Surgery Act permits PAs to perform needle EMG testing. However, the Medical Society of New Jersey and others were concerned that the court interpreted the act too broadly, saying the ruling allowed health care professionals with limited licenses to practice within the same range as MDs and DOs. The MSNJ, joined by the Litigation Center of the American Medical Association and the State Medical Societies, issued a friend-of-the-court brief to the New Jersey Superior Court, Appellate Division. The Legislature never intended the act to be expanded as such, the brief said.

In 2010, an appeals court reversed the trial court's decision. Dr. Rothman appealed to the state Supreme Court. In their Jan. 19 opinion, the high court's judges said New Jersey law does not give PAs the authority to perform EMGs.

"The plain language of the governing statute limits performance of EMGs to those who are licensed to 'practice medicine and surgery in this state.' PAs do not qualify for, nor do they receive, a plenary license to practice medicine," the court said. "Moreover, the statute generally authorizing performance of EMGs refers only to health care 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."

Another aspect of case continues

Allowing PAs to perform EMGs is a quality-of-care concern, said Gail Petersen, a spokeswoman for Selective Insurance Co. of America.

"We strongly believe that while physician assistants play an important role in delivering medical treatment, they should not be doing electromyography due to the dynamic nature of the tests and the potential for results being misread," she said in an email.

The company still intends to collect money it paid Dr. Rothman for past PA services. It believes the court's interpretation of the law should be applied retroactively. The high court did not rule on the issue and sent the case back to the lower court for further review.

The decision is a victory for Dr. Rothman, despite the court disagreeing with the doctor's interpretation of the statute, said William Harla, Dr. Rothman's attorney. The doctor's main concern was whether he must apply the court's decision retroactively, which the court did not require. That means Dr. Rothman will have another chance to make his case at the lower court, he said.

Harla said the court's opinion unfairly limits the practice of PAs.

"We didn't think that was a very logical interpretation of the physician assistant law, because under the law, physician assistants are allowed to do all types of things," he said. "They can cut you. They can diagnose you. ... It would make sense that the Legislature never intended to restrict the role of the physician assistant."

The New Jersey State Society of Physician Assistants said New Jersey's PA law lags behind other states.

"Unlike many state laws that allow physician-PA teams to determine PA scope of practice by physician delegation at the practice level, New Jersey's restricts PA scope of practice to specific tasks outlined in laws and regulations," said Barbara Lopez, president of the NJSSPA. "Allowing physicians more flexible delegation will help their practice and improve patient access to care."

The MSNJ and the AMA Litigation Center took no position on whether PAs are unqualified to perform needle electromyography testing under a physician's supervision, Downs said. The issue is best left to the Legislature or the New Jersey Board of Medical Examiners, the association and Litigation Center brief said.

Downs said the ruling rightly shows that PAs, while helpful to doctors, are limited in their skills compared with licensed physicians.

"Physicians have superior education, training and clinical experience that need to be recognized by the courts and others in terms of where a physician's skills are and in terms of patient safety and quality care," he said. "There are certain things physicians need physician assistants for, but their scope of practice is not the same."