Born in Elsinborough Township in Salem County, New Jersey on October 13, 1825, John S. Rock was a person with amazing talents. After years of working as a physician, for health reasons he turned to the practice of law and in 1865 he became the first black lawyer admitted to practice before the Supreme Court of the United States. But his entire life is marked by accomplishments.

With New Jersey’s enactment of legislation for the abolition of slavery in 1804, Rock was a free-born African American. Unusual for the time, he remained in school until about the age of 18. He became a teacher and eventual head of a Quaker school in Salem County.

In Salem, Rock became active in the struggle for the abolition of slavery and the fair and equal treatment of his race. He was appointed secretary of the Colored Convention that met in Salem in 1849 and was one of the drafters of a petition to the New Jersey legislature to amend the recently adopted new constitution of 1844 to remove the word “white” that had been included in Article 2, Section 1 setting out the right of suffrage giving the right to vote to “[e]very white male citizen of the United States, of the age of 21 years.” He subsequently prepared comments addressing the “citizens” of New Jersey on behalf of a “disenfranchised portion of the legal taxpayers of New Jersey.” He reviewed the principles set forth in the Declaration of Independence and the experience of the founders contrasted with that of blacks who were obligated and expected to pay taxes, comply with the laws, and fight for the country as had been done during the American Revolution. He identified the sophistry of some who said that blacks should go back to Africa pointing out that if the national origin of forefathers was determinative, it would require that many whites go back to Europe. He declared that “[t]he country a man is born in, is his country.” These comments were disseminated nationally in The North Star newspaper published by Frederick Douglass.

Rock’s intellectual appetite led him to the study of medicine. Initially this was through borrowing books from two local physicians that he studied after completing his duties at the Quaker school. However, encountering the barriers of racial prejudice, he was unable to gain admission to a medical college and was unable to pursue a medical career in New Jersey. He relocated to Philadelphia and undertook the study of dental surgery. He opened a dental practice in 1850 and in 1851 won an award for the specimens of artificial teeth he created. He would later publish an article in the Boston Medical and Surgical Journal, the predecessor to the New England Journal of Medicine.

Philadelphia had one of the largest free black populations in antebellum America. There, Rock returned to his quest to become a physician. While maintaining his dental practice, he attended lectures at the American College of Medicine in Philadelphia and received his degree in 1852. In Philadelphia, he became acquainted with William Still, an important figure in anti-slavery activities and who is identified as the “Father of the Underground Railroad.” William Still kept detailed notes concerning fugitives passing through Philadelphia to help reunite families. He was able to reunite with his brother Peter who had remained enslaved for 40 years after their mother escaped with two daughters. Still’s family settled in Burlington County, New Jersey and included an older brother James Still, an herbalist known as the “Black Doctor of the Pines.”  Family reunions have been held in Lawnside, New Jersey for over 150 years.

In 1853, Rock and his wife relocated to Boston where he opened a dental and medical practice. Rock lived in the African American community located in the Beacon Hill area. He frequently treated fugitive slaves who came to Boston on their way to Canada using the Underground Railroad. He continued to write, lecture, and speak publicly in support of equal rights for the members of his race. A speech that Rock delivered in 1858 is recognized as the source of the “black is beautiful” expression that emerged in the 1960s.

Rock began to have health problems and in 1858 he wanted to travel to France for surgical treatment of a throat condition. That plan, however, was initially blocked by his being denied a passport. Then, United States Secretary of State Lewis Cass relied on the opinion of Chief Justice Roger Taney in the Dred Scott case in which he had ruled that because African Americans were not citizens, they could not be issued a passport which was evidence of citizenship. The Massachusetts legislature overcame this obstacle, however, by issuing Rock a state passport. While in France, Rock studied French and German. He achieved such a significant level of fluency that a correspondent for a German-language periodical reported this about a lecture that Rock gave in 1860 about Madame de Stael, a philosopher and political theorist in Parisian and Genevan circles in the time of Napoleon: “This thinking, educated German and French speaking negro proved himself as learned in German as he is in French literature.”

Rock’s French physician had advised him that his medical condition would not permit his continued practice of medicine. While cutting back on his medical practice, Rock began to study law and was admitted to the Massachusetts Bar in 1861. He became familiar with Charles Sumner, the United States Senator for Massachusetts whose antislavery views had prompted an attack in 1856 by a Congressman from South Carolina who beat Sumner with a cane while he sat at his desk on the Senate floor.

In 1863, Rock asked Sumner to support his admission to the bar of the Supreme Court. At this time, admission to the Supreme Court bar was within the discretion of the Chief Justice. Roger Taney was still Chief Justice and Sumner cautioned against making the attempt. But on October 12, 1864, Taney died, and President Lincoln appointed Salmon P. Chase as his successor. Chase had been part of the Team of Rivals that composed Lincoln’s cabinet. Chase had a long record as an antislavery advocate and served as Secretary of the Treasury until June 1864.

Rock renewed his request to be admitted to the Bar. On February 1, 1865, Rock went to the Supreme Court and the Chief Justice granted Senator Sumner’s motion for his admission. The swearing in of Rock overlapped with significant political and historical events. On January 31, 1865, the House of Representatives approved the adoption of the Thirteenth Amendment abolishing slavery in the United States after its earlier passage by the Senate. Though not needed for legal reasons, as a symbolic gesture of approval, President Lincoln signed the Joint Resolution submitting the proposed amendment to the state legislatures for ratification on February 1. It was ultimately ratified by the necessary number of states on December 6, 1865. The Thirteenth Amendment is the only constitutional amendment to be later ratified that was signed by a president.

Still sitting on the Court at the time of Rock’s swearing-in were four of the justices who had joined in Taney’s opinion in Dred Scott. Reporting in the New York Daily Tribune of February 7, 1865 noted that with the admission of Rock to the bar, “[t]he grave to bury the Dred Scott decision was in that one sentence dug; and it yawned there, wide open, under the very eyes of some of the Judges who had participated in the judicial crime against Democracy and humanity.”

The Dred Scott decision regarding the non-citizenship status of African Americans would not actually be overturned until enactment of the Fourteenth Amendment on July 9, 1868 with its birthright citizenship provisions. As part of his activist involvement in Boston, Rock had made a speech on March 5, 1858, condemning the Dred Scott decision that had been issued the preceding March of 1857. He did not experience the actual overturning of Dred Scott. Although admitted to the Supreme Court bar, Rock did not argue or handle any case before the Court before his death on December 3, 1866.

The memory and legacy of the contributions of Dr. John S. Rock are preserved by the Salem County Historical Society. It raised funds to restore the stone marker at his grave in Everett, Massachusetts and provides an annual scholarship in his honor to a student attending Salem County College. It will hold the twenty-first annual John S. Rock Memorial Lecture in October 2025.

In another in the seemingly endless series of decisions parsing the interpretation of the statutory requirements for an affidavit of merit in medical liability claims, on January 22, 2025 the New Jersey Supreme Court issued its unanimous opinion in Wiggins v. Hackensack Meridian Health. The court ruled that in a case against a physician who is board-certified in and practices two different specialties, a plaintiff can satisfy the statutory requirement with an affidavit of merit from a physician specializing in only one of those specialties.

The Wiggins case involved the death of a patient in September 2020. In December 2015, the patient received a prescription for the medication Tramadol for pain and then in January 2016 she received a prescription from a different physician for the medication Allopurinol. The patient had an allergic reaction from either one of the medications or a combination of the two that evolved into Stevens-Johnson Syndrome. This is a rare but serious and potentially life-threatening disorder of the skin and mucous membranes. A person develops a rash that spreads and blisters with the top layer of skin sloughing off.

The patient recovered from the attack of Stevens-Johnson Syndrome, but about four years later was admitted to Hackensack Meridian Health – JFK University Medical Center. Following the discharge, she saw defendant Dr. Goyal who prescribed Allopurinol which she took for four days. Then, on September 9, 2020, she was again admitted to the hospital with a diagnosis of Stevens-Johnson Syndrome. Despite treatment at a burn specialty hospital, she died on September 29 from a cardio-pulmonary arrest attributed to multiple organ failure, bacteremia, and Stevens-Johnson Syndrome.

In his answer to the complaint, in accordance with R.4:5-3, Dr. Goyal indicated that he was certified in the specialties of Internal Medicine and Gastroenterology and that his treatment of decedent “involved the medical specialties of Internal Medicine and Gastroenterology.” Plaintiff’s counsel provided an affidavit of merit (AOM) from a physician who was certified in the field of Internal Medicine but not Gastroenterology. At a case management conference held pursuant to the directives of Ferreira v. Rancocas Orthopedic Associates, defense counsel challenged the sufficiency of the AOM because of the double certification status of the defendant physician and the “like-for-like” requirement of the Patients First Act. Motions to dismiss were subsequently filed.

Arguing that Allopurinol was a medication prescribed by internal medicine physicians and was not limited to gastroenterology uses, Plaintiff opposed the motion to dismiss. Plaintiff contended that the AOM from an internal medicine physician was sufficient, especially in light of the comments of the Supreme Court in Buck v. Henry that “[a] physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that case, an [AOM] from a physician specializing in either area will suffice.” The trial court denied the motion to dismiss. The Appellate Division granted leave to appeal and reversed. It stressed the statutory requirement that an expert have equivalent qualifications to the defendant physician and concluded that the comments in Buck were dicta and not binding. The Supreme Court granted a motion for leave to appeal for further review.

In his opinion for the court, Justice Fasciale reviewed the history of the affidavit of merit requirement from the initial statute enacted in 1985 for liability claims against any professional through the 2004 adoption of the Patients First Act, which enhanced the requirements for liability claims against physicians. He rejected the notion that the quoted comments from Buck were non-binding dicta. In Buck the Court had underscored the importance of the Ferreira conference in identifying and addressing problems with an AOM and weeding out unmeritorious cases, but Justice Fasciale emphasized that in that case the Court “did not resolve whether the plaintiff’s AOMs were sufficient.” But the Court had proceeded to provide guidance for sorting out when a physician practiced in more than one specialty and the treatment fell into more than one specialty area. Justice Fasciale stated: “‘[M]atters in the opinion of a higher court which are not decisive of the primary issue presented but which are germane to that issue … are not dicta, but binding decisions of the court’ [and] ‘the legal findings and determinations of a high court’s considered analysis must be accorded conclusive weight by lower courts.’”

Turning to the text of the statute, he pointed out that its plain language did not require an AOM to be from an individual with the same numerous specialties as the defending physician; “instead, it requires only the same ‘specialty or subspecialty’ in the singular” with emphasis added to the use of the disjunctive conjunction. Similarly, he noted that the statute’s requirement concerning equivalence as to the care or treatment in dispute was also “‘specialty or subspecialty,’ not specialties or subspecialties.” He distinguished the circumstances where even though practitioners of emergency medicine, family medicine, internal medicine might all treat similar or related conditions in the course of their practice, but the AOM was from a physician who was not equivalently qualified in any of these specialties but rather other areas.

The critical fact in Wiggins was the defendant’s acknowledgement that in addition to being certified in both internal medicine and the subspecialty of gastroenterology, his treatment of this patient involved both internal medicine and gastroenterology. There was nothing about the prescription of Allopurinol that was unique to the subspecialty of gastroenterology. Thus, it would be appropriate for a physician practicing in either of these fields to provide an AOM.

The decision in Wiggins adheres to the New Jersey Supreme Court’s long-standing practice of not exalting form over substance. The coalescence of both specialty credentials and treatment matching up with the defendant physician’s training and practice avoids a retrenchment to the time before enactment of the Patients First Act when the Court had tolerated a very low threshold to qualify as an expert. For example, in its 1953 decision in Carbone v. Warburton, the Supreme Court had stated “[t]he fact that [the proffered expert witness] is not a specialist may disparage his qualifications and thereby the weight to be given his opinion, but it does not render him incompetent to state an opinion.” Other cases recognized expert witness status as to persons who did not even hold a license in the field in question. In Sanzari v. Rosenfeld, a physician anesthesiologist was allowed to testify as to dental standards of care. In Rosenberg by Rosenberg v. Cahill, a medical doctor was permitted to testify as to the standard of care for a chiropractor. In Nicholas v. Mynster, the Court reasoned that allowing physician experts of different medical specialties, but who treated similar maladies, to offer testimony even though not equivalently credentialed to the defendant physician would “read out of the statute the kind-for-kind specialty requirement” the Legislature intended to impose.  Wiggins follows the same analysis.

Greenbaum healthcare attorneys Neil M. Sullivan and Jennifer A. Belardo analyze the CMS’s Medicaid and Children’s Health Insurance Program (CHIP) Managed Care final rule – and its impact on states, healthcare providers, and health plans navigating the Medicaid landscape – in this article recently published by the HFMA’s New Jersey Chapter in its Garden State Focus magazine.

On September 26, 2024, the Health Infrastructure Security and Accountability Act was introduced in the U.S. Senate. The bill would amend the Health Insurance Portability and Accountability Act (HIPAA) and direct the U.S. Department of Health and Human Services (HHS) to develop new “mandatory minimum cybersecurity standards for health care providers, health plans, clearinghouses and business associates.” It would further mandate annual cybersecurity audits and stress tests for healthcare entities, with particular waivers for small providers. To fund these new endeavors, the bill would remove fine caps for large corporations, fund the HHS’s oversight through user fees, and allocate $1.3 billion to hospitals for cybersecurity improvements.

HHS has indicated its backing of the bill, with Deputy Secretary Andrea Palm stating, “Clear accountability measures and mandatory cybersecurity requirements for all organizations that hold sensitive data are essential.” At this writing, the American Hospital Association (AHA) has declined to comment on the bill.

One of the bill’s sponsors, Senator Ron Wyden of Oregon, has commented that the bill is necessary because “megacorporations like UnitedHealth are flunking Cybersecurity 101, and American families are suffering as a result.” UnitedHealth’s subsidiary Change Healthcare was subject to one of the largest ransomware attacks in America’s history, leading to significant impacts on patients and healthcare providers. The fallout from this ransomware breach continues to be felt across the healthcare industry.

Given that the bill was introduced as Congress concluded its last day of business until the upcoming election, it is unlikely to progress any further during this legislative session. Moreover, depending upon the outcome of the upcoming election, the bill faces an uncertain future. Nevertheless, the healthcare industry is likely to continue to face pressure to improve its cybersecurity standards, whether voluntarily or through legal mandates.

The Attorney General of New Jersey and the Director of the New Jersey Division on Civil Rights jointly commenced a lawsuit against the Virtua Health System and its constituent hospitals alleging that its policy and practices concerning universal drug testing of all pregnant patients constituted unlawful discrimination based on pregnancy and sex in violation of the New Jersey Law Against Discrimination (LAD). The complaint, filed on September 26, 2024, also alleged that these drug tests have been “regularly administered” without obtaining informed consent from the patient. In addition to four counts asserting LAD violations based on pregnancy and sex, the complaint included a separate count alleging a violation of a state constitutional right of privacy enforceable under the New Jersey Civil Rights Act (NJCRA), grounded in the failure to obtain informed consent to the drug testing. It seeks relief in the form of a declaration that the defendants committed the acts and omissions alleged and that they constitute violations of the LAD and the NJCRA, an injunction against the continuation of the policy and requiring informed consent before testing were done, compensatory damages and civil penalties.

Since the Virtua hospitals are not the only hospitals in New Jersey having policies for routine drug testing on urine samples from perinatal patients, this lawsuit provides an incentive to review and evaluate those hospital policies and others in general through the lens of possible discrimination concerns. In addition, some aspects of the State’s pleading merit close attention.

Substance use during pregnancy has been recognized as a public health concern for many years. The New Jersey Supreme Court has ruled that not every instance of drug use during pregnancy, standing alone, will substantiate a finding of abuse and neglect in light of the specific language of the New Jersey statute. Unlike some states, New Jersey has not made prenatal drug use child abuse per se

New Jersey hospitals have a statutory obligation to report suspected child abuse, which can include situations involving opioid usage in pregnant women if it poses a risk to the child. In response to requirements in the federal Child Abuse and Prevention and Treatment Act that healthcare providers involved in the delivery or care of infants affected by substance abuse from prenatal drug exposure notify the child protective services system of the occurrence such infants, the Department of Children and Families and the Department of Health adopted regulations mandating that a hospital report a “substance-affected infant” to the Division of Child Protection & Permanency (DCP&P) for possible child abuse or neglect.

“Substance-affected infant” as defined by rulemaking includes the circumstance where the mother had “a positive toxicology screen for a controlled substance or metabolite thereof during pregnancy or at the time of delivery.” The Virtua hospital policy of obtaining urine drug tests takes place in the context of a regulatory requirement to report possible substance-abused infants.  That report, however, triggers the involvement of DCP&P representatives in an investigation that can be intrusive and offensive. This is a consequence of the occurrence of “false positive” results on the urine drug tests even with confirmatory retesting. The complaint describes the experience of two separate patients who became embroiled in DCP&P investigations even though their urine tests were only positive as a result of their having eaten a poppy seed bagel.

The complaint criticizes the Virtua policy providing for universal urine drug testing for all pregnant patients. It notes that this policy was at odds with recommendations made by the American College of Obstetricians and Gynecologists (ACOG) and the American Society of Addiction Medicine (ASAM) that all pregnant women should be screened for substance use disorders but using a series of verbal questions rather than urine drug testing. The 2017 Committee Opinion stated “[r]outine urine drug screening is controversial for several reasons.” These include that a positive test is not diagnostic of an opioid disorder or its severity as well as only identifying recent use. It might detect the presence of an authorized prescribed medication for pain. In addition, urine testing may not detect other substances that are often abused. Moreover, it notes that “[f]alse positive tests can occur with immune-assay testing and legal consequences can be devastating to the patient and her family.” The complaint relates similar positions by other organizations of national and international stature such as the CDC and the WHO.

Making allegations on information and belief, the complaint asserts that until 2018 Virtua had a policy in which it “did not conduct universal drug testing of all pregnant patients seeking inpatient hospital admission. Instead, it would verbally screen patients and would then decide to administer a urine drug test based on a patient’s risk of drug use.” That policy appears to have conformed to the ACOG/ASAM recommendations. Virtua revised that policy in 2018 because of the rapid increase in opioid usage in the country that has commonly been referred to as the “opioid epidemic” and to deal with the increasing number of infants being seen by Virtua clinicians exhibiting symptoms of neonatal absence syndrome (NAS) as a result of opioid usage. The complaint characterized the justifications offered by Virtua for its universal drug testing policy as “pretextual.” The complaint does not address the provisions in the Department of Health regulations that the hospital’s policies regarding cases of suspected child abuse or neglect are “reviewed by the Department and revised as required by the Department.”

Since the 2017 ACOG/ASAM endorsement of screening for substance abuse through questions and questionnaire, there have been studies published in 2023 and in 2024 identifying racial disparities and implicit bias in the implementation of question-based screening for prenatal substance abuse. The development of this perspective is a manifestation of the axiom articulated by the New Jersey courts over several decades in cases such as Schueler v. Strelinger and Morlino v. Medical Center of Ocean County that medicine is not an exact science.

The complaint states that “Virtua’s drug testing policy mandates that hospital staff obtain informed consent from all pregnant patients prior to mandatory drug testing.” That policy is consistent with New Jersey law. In Mathies v. Mastromonaco, the Supreme Court rejected the contention that “informed consent applies only to invasive procedures.”  And as recognized in Estate of Behringer v. Medical Center at Princeton, issues of pre-test counseling and informed consent are involved in a patient allowing the hospital to test. The United States Supreme Court in Ferguson v. City of Charleston held that urine drug testing of pregnant women for drug use without their informed consent violates the Fourth Amendment. That ruling did not involve a private hospital but rather was in the setting of a public hospital conducting a program in conjunction with law enforcement for the detection of possible child abuse where state law provided for the prosecution of drug-using pregnant women.

While Virtua had a policy requiring informed consent to the drug testing of pregnant patients, according to the complaint, “Virtua’s staff regularly deviates from that policy.” This underscores the importance of adequate education recognizing the difference between consent and informed consent, the difference between a consent form and the consent process. A general consent form signed on admission to the hospital authorizing the practitioner to render care, including but not limited to performing labs, ordering diagnostic tests, and the like, may be sufficient to avoid a battery charge. Such forms may not be effective as evidence of an “informed consent” without a communication of material information regarding the proposed medical treatment.  The form is no replacement for the process of informing a patient as to the purpose, risks, benefits, and alternatives to a proposed course of medical action. The existence of a meaningful policy to obtain patient informed consent can provide an affirmative defense to the claim of discrimination if it is generally enforced. Seemingly there will be questions of fact concerning what Virtua knew about no informed consent being obtained by staff and when it knew it and what it did about that.

The informed consent claim may be fatally flawed. The complaint accurately recites that New Jersey law requires medical providers to obtain informed consent before providing medical treatment including administering a drug test. As understood in the case law, the doctrine of informed consent requires that the hospital or medical provider make the patient aware of any information a reasonably prudent patient would find significant to make an informed decision regarding a course of treatment, procedure, or test and not what a physician might find pertinent or relevant to a given medical decision. The complaint sets forth that this information should include the medical indication for the test, information regarding the right to refuse the test and the possible outcome of positive test results “including any state-mandated reporting requirements.” However, the New Jersey Supreme Court has stated that in a negligence action predicated on lack of informed consent, a plaintiff must demonstrate that a physician “withheld medical information that a reasonably prudent pregnant woman in like circumstances would have considered material before consenting.” (Emphasis in original.) A few years earlier, the Appellate Division had held that “the doctrine of informed consent did not require defendant in this case to advise plaintiff of the FDA regulatory status” of the medical device that was going to be used in an off-label fashion. These precedents may defuse the scope of the lack of information provided to these patients.

The allegations in the third and fourth counts of the complaint seem to be an overreach. These claim a violation of the LAD because of discrimination “on the basis of sex.” More specifically, the complaint asserts that “the vast majority of Virtua’s patients seeking admission to its Labor and Delivery or High-Risk Obstetrics Units are women.” It continues that Virtua does not subject any group of patients comprised entirely or mostly of men to the “Maternal Care Manual” policies and require universal drug testing upon inpatient hospital admission. That undoubtedly is true. The universal urine drug testing of pregnant female patients is directed at determining the presence of opioid substances that could present a substantial risk to the unborn baby. While not completely impossible in an era of transgender males and uterus implantations, it seems self-evident that pregnant patients seeking admission to Labor and Delivery will necessarily be female patients. This does not resemble discrimination “on the basis of sex.”

The fifth count presents a novel claim for deprivation of civil rights with the contention that the failure to obtain an informed consent to the urine testing constitutes a violation of an individual’s right to privacy guaranteed by Article I, Paragraph 1 of the New Jersey Constitution of 1947. In 1976 in Matter of Quinlan, the Supreme Court had identified this state constitutional provision as including a right of privacy broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances consistent with personal autonomy. Although subsequent cases continued to recognize a right of privacy under the state constitution in different settings, nine years later in Matter of Conroy the court reformulated the basis for the refusal of life-sustaining medical treatment as embraced within “the common-law right to self-determination” and “the doctrine of informed consent.” It is quite a stretch to transform the right to refuse medical care into an actionable affirmative claim under the Constitution to receive information. The complaint lays out another new path for a civil rights action with the contention that the failure to comply with the Virtua policy to obtain an informed consent was a violation of rights protected under state law found in the New Jersey Hospital Patients Bill of Rights, to “receive from the physician information necessary to give informed consent.” In light of the statutory interpretation of the Hospital Patients Bill of Rights in the Appellate Division’s ruling in Castro v. NYT Television “that the Legislature did not intend to create a new private right of action for a violation of the rights recognized thereunder,” this is a questionable contention.

The action filed on September 26 is not the first litigation by or on behalf of women claiming they received false positive results from eating poppy seed bagels or salad dressing and then being investigated by child protection agencies.  Complaints with allegations of discrimination in violation of federal rights based on urine drug testing have been filed over the past decade in New York, Pennsylvania, California, Illinois, Alabama, Maryland and elsewhere.  A case filed in upstate New York was recently dismissed and is on appeal.  The New Jersey action is premised entirely on New Jersey law.

 

 

A recent post on this blog previewed the issues raised in the case of Govatos v. Murphy related to the residency requirement in the New Jersey Medical Aid in Dying for the Terminally Ill Act

On September 18, 2024, the Honorable Renée Marie Bumb, the Chief Judge for the U.S. District Court for the District of New Jersey, filed a 59-page opinion along with an Order dismissing the complaint in Govatos challenging the constitutionality of the Act’s residency requirement. Judge Bumb rejected the claim that the State’s requirement that a person be a resident of New Jersey to receive medical aid in dying violates three provisions of the United States Constitution: (1) the Privileges and Immunities Clause of Article IV, § 2; (2) the dormant Commerce Clause of Article I, § 8; and (3) the Equal Protection Clause of the Fourteenth Amendment.

Judge Bumb framed the issue before her as whether the Constitution requires a state to extend to non-residents a non-fundamental privilege to access medical aid in dying that it affords to its own residents pursuant to the New Jersey statute. The opinion analyzes the contention that the Privileges and Immunities Clause is violated by the statutory residents-only provision because it burdens the fundamental right to interstate travel with the denial of the medical aid in dying services to non-residents. The court’s examination of this issue sensibly begins by formulating what the Privileges and Immunities Clause covers. It reviewed interpretations of the clause dating back to 1823. It concluded that the court must engage in a two-step process in evaluating a claim that a state law unjustifiably discriminated against non-residents. The first was a determination of whether the non-resident’s claimed interest was “sufficiently fundamental” to be within the purview of the Clause. If the discriminatory law did affect a fundamental privilege, it was necessary to consider whether there was a substantial reason for the difference in treatment and whether the discriminatory action bore a substantial relationship to the state’s objective.

In concluding that there was no fundamental right to medical aid in dying, the court found the Supreme Court’s 1997 decision in Washington v. Glucksberg to be dispositive in concluding that there was no right to assistance in committing suicide under the Due Process Clause. It also referred to the companion case of Vacco v. Quill decided the same day, which rejected a challenge under the Equal Protection Clause to a statute making assisting someone to commit or attempt suicide a crime as reaching the same conclusion. In Vacco, the court distinguished its 1990 decision in Cruzan v. Director, Missouri Department of Health in which it had assumed that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment but emphasized that a right to refuse treatment was not grounded in a general and abstract “right to hasten death” as an exercise of personal autonomy, but rather was premised on well-established, traditional rights to bodily integrity and freedom from unwanted touching. The right to refuse treatment does not necessarily transform into a right to demand a particular treatment.

The Govatos court followed that reasoning in ruling that the “right” to medical aid in dying in New Jersey statute was a qualified right subject to conditions, such as the confirmed presence of a terminal condition with a life expectancy of less than six months. This “right” was derived entirely from statutory authorization, not constitutional protection. It also observed the comment in Kligler v. Attorney General that no state supreme court “has concluded that physician-assisted suicide constitutes a fundamental right” as a matter of state constitutional law. The Kligler decision was the subject of commentary in a January 2023 post on this blog.   

The Govatos court further rebuffed the plaintiffs’ argument that the residency requirement burdened their fundamental right to travel within the United States that had been recognized in Shapiro v. Thompson. It did not accept the attempt to bootstrap the non-fundamental privilege of medical aid in dying to the fundamental right of interstate travel. It rejected the analogy to Doe v. Bolton in which the Supreme Court struck down a Georgia statute criminalizing abortion unless several conditions were met. Among those conditions was that the procedure could only be performed on a woman who resided in Georgia. In distinguishing Doe, the court noted that the Supreme Court had found no basis for this residency requirement. In contrast, the State of New Jersey had several justifications beginning with its observation that medical aid in dying was “legally indistinguishable from the criminal act of suicide” and was not general medical care. Next, the two plaintiff-patients sought to obtain medication that they could self-administer to end their lives in their home states of Delaware and Pennsylvania. Assisting suicide was a criminal act in both Delaware and Pennsylvania. The State had a legitimate interest in protecting New Jersey healthcare providers from liability in another state for conduct that would be a crime there. Moreover, the State had a justifiable interest in ensuring that the self-administration of the lethal medication was completely voluntary and that the provisions of the Medical Aid in Dying Act that provided additional safeguards were followed. The situation before the court was unlike the circumstances of laws such as in Texas that aimed to prevent its citizens from traveling to another state to obtain an abortion legal in that other state but not in Texas and could adversely affect its own citizens’ ability to return to their own state after seeking access to abortion services.

The court found that the Govatos plaintiffs did not have a cognizable Dormant Commerce Clause claim. This Clause provided protection against economic protectionism from measuring benefiting in-state interests and burdening out-of-state competitors. The court concluded that the New Jersey Medical Aid in Dying Act did not discriminate or burden interstate commerce. It also quickly disposed of the Equal Protection Clause challenge because the residency requirement did not target a suspect class and did not infringe on a fundamental right. Thus, it was subject to review under the rational basis test. The residency requirement was rationally related to legitimate governmental objectives. The protection of healthcare providers from either criminal or civil liability in another state based on having provided a person with lethal medication to end their life was a legitimate purpose. The New Jersey Medical Aid in Dying Act provided physicians with broad criminal and civil immunity but only if the terms of the statute were complied with. Otherwise, assisting suicide is still a crime in New Jersey. It was also a criminal offense in both Delaware and Pennsylvania with statutes that punished conduct outside the state where the result occurred within the state.

The Govatos ruling, in combination with the Massachusetts decision in Kligler, illustrates the limits of attempts to establish a right to physician assistance in dying through a constitutional adjudication. Govatos documents the widespread opposition to physician aid in dying with the court repeatedly making the observation that this medical practice is “indistinguishable from the criminal act of assisting suicide.” Only a few states have enacted legislation to permit the practice and eliminate the risk of criminal exposure. The practice of medical tourism by individuals living in states that do not permit medical aid in dying is a matter of continuing risk. While the ethical justification is well-established for accepting and acting on a patient’s right to refuse care whether it involves withholding or withdrawing care, the same cannot be said of physician assistance in dying. 

The federal Corporate Transparency Act (CTA) requires many business entities to disclose information about their business ownership to FinCEN.  Healthcare entities should note that the CTA does not have an exemption for healthcare practitioners, and so small to mid-size healthcare practices of all kinds, as well as practices falling into the “friendly PC” model, are likely to be required to report under this law. This lunch hour complimentary webinar will provide practical guidance for those businesses including a review of key points of the CTA and helpful pointers to ensure legal compliance for entities with reporting requirements. Additional program information and registration link at: bit.ly/47scrMq

The NJ Board of Public Utilities (BPU) has scheduled a stakeholder meeting for Tuesday, September 17, 2024, for the purpose of receiving comments and input regarding the Competitive Solicitation Incentive (CSI) component of the New Jersey solar energy renewable energy certificate program, sometimes referred to as the Successor Solar Incentive (SuSI) Program. Alternatively, stakeholders are invited to submit comments in writing no later than September 24. This Client Alert by our partner Barbara J. Koonz provides related details.

Since being enacted in 2019, the New Jersey Medical Aid in Dying Act has had a threshold condition on a patient’s request for medication under the Act: that they be an “adult resident of New Jersey.” The physician’s record must contain documentation of the patient’s status as a resident of New Jersey, whether in the form of a driver’s license, voter registration or tax returns. This “residency” requirement is a common factor in the laws of other states that have enacted similar legislation authorizing the dispensation of lethal medication to end a person’s life. Only two states currently do not have this requirement.

Focusing on a Pennsylvania resident, the article “Traveling to Die: The Latest Form of Medical Tourism,” originally appearing in the August 20, 2024 issue of KFF Health News and republished in the August 21 issue of Medscape, reviews the experience of individuals who live in states that have not legalized and authorized medical assistance for dying and who travel to one of the two locations which have dispensed with the residency requirements: Oregon and Vermont. This is seen by some as an “emerging trend.” However, the subject of medical tourism, sometimes referred to in this context as “circumvention tourism,” has been a matter of controversy.

The residency requirement presents several obstacles for patients. These include having to find cooperative doctors in a new state since every state requires confirmation of the terminal condition and limited prognosis by two physicians. In addition, there is a need to arrange for a place in the new state to ingest the medication and die. Moreover, the residency requirement imposes a burden of traveling “when too sick to walk to the next room, let alone climb into a car.” The practical burdens of the trip are increased by statutory requirements for a waiting period intended to give a patient the opportunity to calmly reflect and deliberate on their decision.  Not only does this result in the need to obtain housing or engage in repeat travel, but the waiting period also presents the risk of the underlying condition progressing to a point where an individual loses capacity for decision-making and can no longer participate or where an individual dies before the waiting period is over while suffering throughout that time from the underlying condition that brought them to make the request for a physician-assisted death. In New Jersey, like most other states, the waiting period is 15 days. Several states have modified their laws to either shorten the waiting period or provide exceptions in the event of imminent death. A bill to eliminate the 15-day waiting period under the New Jersey Medical Aid in Dying Act was introduced in the 2022-2023 session of the legislature, but not acted upon. It was introduced again on January 9, 2024 in the 2024-2025 session but remains in committee.

The changes to the residency requirements in Oregon and Vermont resulted from the settlement of federal lawsuits challenging these requirements as violating the privileges and immunities clause of the United States Constitution with resulting legislative action to remove the requirement. New Jersey’s residency requirement is being questioned in the case of Govatos v. Murphy. On August 29, 2023, a complaint was filed in the United States District Court for the District of New Jersey asserting a challenge to New Jersey’s residency requirement as violating the Privileges and Immunities Clause (Art. IV, § 2), the Commerce Clause (Art. I, § 8), and the Equal Protection Clause (Amend. XIV, § 2) of the United States Constitution. The State has moved to dismiss the complaint. The motion has been fully briefed and is awaiting disposition and a decision by the court.

If the New Jersey residency requirement is declared constitutionally invalid, there likely will be an increase in the utilization of the Medical Aid in Dying Act. Travel to New Jersey is relatively easy from the abutting states of New York and Pennsylvania which do not permit medical assistance in dying. The Delaware legislature passed a bill to authorize medical assistance with dying and awaits action by the governor. Whether or not the governor will sign the bill is uncertain. However, the Delaware statute as passed would only allow an adult resident of Delaware to request and self-administer medication to end the individual’s life, leaving New Jersey as a probable destination for an individual seeking a physician-assisted death.

An article co-authored by Greenbaum attorneys John Zen Jackson and Madeline B. Gayle, recently published in the Widener Law Review, reviews the tragic circumstances surrounding Charles Cullen, the killer nurse who became known as the “Angel of Death” following the discovery of his role in the deaths of between 40 and 400 patients in New Jersey and Pennsylvania.  Limited pre-employment vetting and background checks combined with the lack of thorough investigations of suspicious circumstances allowed Cullen to change employment at several healthcare institutions without detection for approximately 15 years until his arrest in 2003. The article examines the ensuing litigation, as well as New Jersey’s legislative response which included the enactment of laws imposing a duty to disclose medical errors and report misconduct as well as an obligation on the part of healthcare entities to provide and obtain meaningful background and performance information concerning prospective employees. Mr. Jackson and Ms. Gayle also evaluate the limitations and unintended consequences of the Health Care Professional Responsibility and Reporting Enhancement Act (HCPRREA), also known as the Cullen Law.