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Physician assistants can't perform needle electrodiagnostic tests, N.J. rules

Reversing a trial court decision, the judges say only licensed doctors can conduct the procedure.

By Tanya Albert Henry — Posted Aug. 19, 2010

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A New Jersey appellate court refused to expand physician assistants' scope of practice to include a procedure that it said the Legislature intended only licensed physicians to perform.

In a July ruling, the court said only physicians can perform needle electrodiagnostic tests, including needle electromyography studies and nerve conduction velocity tests.

Judges relied on a plain reading of the law that "a person shall not perform needle electromyography unless that person is licensed to practice medicine and surgery" in New Jersey. Under state law, "physician assistants are 'not licensed to practice medicine and surgery' " the court said in Selective Insurance Co. of America v Rothman.

The law allows physician assistants to perform "certain procedures in their capacity as physician assistants, but they are not 'licensed to practice medicine and surgery,' " according to the opinion. The court said a regulation that outlines procedures a physician assistant can perform does not "specifically mention needle EMG tests."

"Because we are satisfied that the relevant provisions of [the law] are clear and unambiguous, there is no need to discern the meaning of the statute," the court said.

The decision reverses a trial court ruling. At this article's deadline, neurologist Arthur C. Rothman, MD, PhD, had asked the appellate court to reconsider its decision. His attorney would not comment because of the pending appeal.

Dr. Rothman sued Selective Insurance Co. of America after it refused to pay a claim for electrodiagnostic tests a physician assistant performed in his office. The insurer, according to court documents, said the physician didn't perform the needle EMG test and that the physician assistant was not legally authorized to do it.

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

Gail Petersen, a spokeswoman for Selective, said the appellate court's decision was in the best interest of the consumer. "This is a quality-of-care issue," she said.

The company intends to collect money that it paid Dr. Rothman for services he didn't perform, she said.

The Medical Society of New Jersey and the Litigation Center of the American Medical Association and the State Medical Societies filed a friend-of-the-court brief. The groups believed the lower court ruling was too broad of an interpretation and would expand the scope of practice to procedures the Legislature didn't intend, said Lawrence Downs, MSNJ's general counsel.

"A physician assistant is limited to performing only those procedures specifically authorized by the Physician Assistant Licensing Act," the brief states. "Given the scheme for regulating physician assistants, they are not permitted to perform this test absent specific statutory/regulatory authorization."

MSNJ and the Litigation Center took no position on whether physician assistants are unqualified to perform needle electromyography testing under a physician's supervision. They believe the issue is best left to the state Legislature or the New Jersey Board of Medical Examiners, according to the brief.

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