Selective Ins. Co. v. Rothman, 208 N.J. 580 (2012). The issue in this case, which arose out of the plaintiff insurance company’s denial of personal injury protection (“PIP”) claims for payment of bills for an electrodiagnostic test known as needle electromyography (“EMG”), was whether a licensed Physician Assistant (“PA”) can perform an EMG. A trial judge held that PA’s can perform that procedure. The Appellate Division reversed and ruled that PA’s could not do so. Defendant, a doctor whose PA had done the EMG’s at issue, and who made the PIP claims as his patient’s subrogee, was granted review by the Supreme Court. In a per curiam opinion, the Court affirmed the Appellate Division.
The Court largely relied on the “thorough and persuasive opinion” of Judge Yannotti for the Appellate Division in holding that N.J.S.A. 45:9-5.2(a), by its plain language, limits the performance of EMG’s to persons who are “licensed to practice medicine and surgery in this State.” A PA does not receive a plenary medical license, and another statute, N.J.S.A. 45:9-27.16, lists procedures that PA’s may perform. As a result, the Court concluded, neither statutory language nor any legislative history “suggests that the Legislature intended to include PAs when it did not do so explicitly.”
The Court swatted away Rothman’s argument that a statute that allows PA’s to “assist” a physician allowed the PA to take the place of the physician. That “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.”
There was another issue, however. After the Appellate Division ruled, Rothman filed a motion for reconsideration in which, for the first time, he asked that the panel’s decision be made prospective only. The Appellate Division denied reconsideration on the ground that the prospectivity issue had not been raised before. The Supreme Court agreed to review that issue. The Court noted the general rule that arguments not properly presented below will not be considered on appeal, except as to issues of great public importance or jurisdiction. The Court decided, however, to address the issue “in a summary manner.”
The Court briefly set out some of the basic principles governing retroactive or prospective application of decisions in civil litigation, noting that such decisions ordinarily apply retroactively unless they announce a new rule of law or where retroactivity would produce inequitable results. The Court observed that the record in this case was “largely devoid of evidence” of the type needed to do an analysis of the retroactivity issue. Noting that other cases where the issue could be decided below on a full record were pending, the Court chose not to decide the retroactivity issue in the context of this case.