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Legal News That You Can Use: The Case Of The Delegating Doctor, Or Why Micromanaging Is Sometimes Advisable

We all have had medical tests administered by employees of our doctors, rather than by the doctors themselves. This allows our physicians to devote more time to the things that only physicians can do

We all have had medical tests administered by employees of our doctors, rather than by the doctors themselves. This allows our physicians to devote more time to the things that only physicians can do: Diagnosing those difficult cases, keeping current on the latest medical research findings,  managing their stock portfolios, refining their golf swings, etc.

Recently, the Supreme Court of New Jersey put a limit on employee administered tests, at least with regard to one test. A Bergen County neurologist, whom we’ll call Dr. R., was letting a physician’s assistant perform this particular test. The test is called a “needle EMG”. (“EMG” is short for electromyography). A needle EMG involves inserting a needle electrode through the skin, into muscle tissue.  The procedure can detect nerve or muscle problems. Sounds painful.

However, the law authorizing EMGs states that they must be performed by to those who are licensed to "practice medicine and surgery.” The doctor argued that a physician’s assistant could nonetheless perform the test, based on the law that allows a physician’s assistant to "assist" a physician to practice medicine.

The Supreme Court rejected the doctor’s argument. The Court noted that "assist" does not mean "perform in the place of." Dr. R. is now facing separate legal action by the Board of Medical Examiners, for fraud.

I think that the Court got it right. However, the law needs to be clarified respecting other procedures.  In the future, both patients and physicians should know in advance exactly which procedures can be performed by non-physicians. As for Dr. R., I do not think that it would be fair to sanction his medical license for past offenses. After all, it was not crystal clear, until the court spoke, that his conduct violated the law.  

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Marc S. Berman is an attorney with offices in Fair Lawn and Paramus.  Disclaimer: The articles posted here are for informational purposes only, and are not intended as legal advice for specific cases. Readers  should not act, or refrain from acting, based upon any information presented here, but rather should retain an attorney to advise them.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Marc S. Berman April 10, 2012 at 04:41 AM
Hi Jimmy, Thank you for your comment. Marc Berman P.S. You raise some interesting points. But I must note that legal briefs are "written", not administered. I WISH my various employees over the years could have written well enough that I could have just sat on my veranda all day long, and sipped my chocolate milk in repose. But, poor sap that I am, I've had to work on my briefs myself. (I actually don't really have a veranda in my house, and, having grown up in a small apartment in Paterson, I'm not even positive what one is). I am also almost ashamed to admit that the one time that I tried to play golf, I played so badly that I wound up throwing the little ball at the hole. (Still couldn't get it in). And as far as the "spending huge amounts of money on clothing and shoes" bit goes, now that Syms has gone out of business, I damn well may have to.
Bill April 10, 2012 at 06:26 AM
Marc, this article is great. Unfortunately, I didn't know that certain tests must be administered by physicians only. EMG's are painful and I could never get a straight answer as to the reason why they are administered without anesthesia (local or otherwise). There are many other tests that are painful and also administered without medication. It brings out the sadistic side of some people. Is there a reference guide that can be consulted when a test is suggested by a physician?
Marc S. Berman April 10, 2012 at 12:29 PM
Bill, Thank you for your kind words. I am personally not familiar with any such reference guide. There apparently are some published. If you go to Amazon.com and search for " Patient's Guide to Medical Tests", you can pull up some. I don't know how good or reputable they are. For what it's worth, what I do personally is consult a reputable medical web site and research the test there. Such web sites include www.mayoclinic.com, webmd.com, and clevelandclinic.org. I would also suggest that you subscribe to a good patient oriented medical magazine, such as Consumer Reports on Health. They often have articles on a variety of tests and procedures. You can save your back copies for future use. At the end of each year they put out an index. Good luck. Marc Berman

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