On March 15, 2025, President Donald Trump signed a continuing resolution extending funding of the federal government through September 2025. Included in the continuing resolution were provisions that also extended Medicare telehealth flexibilities through September 2025.

Many providers in the healthcare industry have come to rely upon these virtual services for the delivery of care to patients. These flexibilities were originally set to expire on March 31, 2025, after having been put in place during the COVID pandemic. Up until only a few days ago, many feared they were going to be allowed to expire at the end of the month.

Of primary significance, the continuing resolution permits the following flexibilities, among others, to continue:

  • Enabling telehealth visits to occur from a wider range of locations, including a patient’s home, rather than the services being limited to rural areas and requiring certain originating sites.
  • Permitting additional qualified provider types and services to deliver virtual care, including physical and occupational therapy, emergency department visits, and nursing facility care.
  • Extending the Acute Hospital Care at Home Program, which allows Medicare-certified hospitals to furnish inpatient-level care in patients’ homes.
  • Continuing the waiver of the in-person visit requirement for behavioral health services.

While many had pushed for these flexibilities to be made permanent, or at least extended for a longer period of time, the continuing resolution will provide Congress and telehealth advocates with an additional six months to continue work on shaping the future of telehealth services.

On February 28, 2025, the Appellate Division of the Superior Court of New Jersey filed an opinion approved for publication in S.V. v. RWJ Barnabas Health. The court reversed the denial of a motion for summary judgment and ordered the dismissal of the psychiatric malpractice complaint. In an opinion written by Judge Sabatino, it held that the healthcare providers who had discharged a patient from a voluntary commitment did not have liability for a single car crash in which the passenger was injured when the recently discharged patient drove into oncoming traffic before losing control and crashing into a telephone pole. The court granted leave to appeal limited to the issue of whether the defendants had a legal duty to the non-patient passenger plaintiff who was the patient’s sister. Concluding that under the circumstances presented, the defendants “could not have reasonably foreseen that [the patient], shortly after her discharge, would cause a motor vehicle crash that would injure plaintiff.”

In dismissing the complaint because the defendants did not owe a duty of care to the third-party passenger, the court built upon a similar outcome in Vizzoni v. B.M.D. in which the Appellate Division affirmed summary judgment in favor of a psychiatrist whose co-defendant patient had killed a bicyclist while driving under the influence of psychotropic medications. The psychiatrist had not warned the patient that she should not drive while taking the medication. The court held that because the bicyclist was not the psychiatrist’s patient, he did not owe a duty of care to a third-party injured by the patient.

In Vizzoni, the court emphasized that foreseeability was “the foundational element in the determination of whether a duty exists” to provide a basis for imposing tort liability. It serves a dual purpose in determining both the existence of a duty of care and whether a breach of that duty is a proximate cause of the ultimate injury. In Hopkins v. Fox & Lazo Realtors, the New Jersey Supreme Court noted that this formulation arises out of the classic case of Palsgraf v. Long Island Railroad Company studied in law school. In various cases, the Supreme Court has repeatedly stated that the determination of the existence of a duty of care “is one of fairness and policy that implicates many factors” and “turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.” The factors to be identified, weighed, and balanced include the relationship of the parties, the nature of the risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. 

In Vizzoni, the court noted the recognition in New Jersey judicial decisions that a mental health professional owes a duty to take reasonable steps to protect a readily identifiable victim put at risk by their patient. This duty of care arises from the context of a special relationship between physician and patient with the principal question being whether the defendant had a duty to act for the benefit of another but failed to do so. A special relationship can be the result of status, such as employer and employee, or it may emerge from some undertaking by the defendant to exercise care for the plaintiff, such as when a physician accepts a patient with an implicit promise to treat the patient with at least the skill and care customarily exercised by physicians in that field. In the absence of a special relationship a person has no duty to control the actions of another. The Appellate Division utilized Section 41 of the Restatement (Third) of Torts (2005) to support a distinction between where the practitioner is under an affirmative duty to act as opposed to when the practitioner’s conduct creates a foreseeable risk of harm. For example, when a practitioner prescribes either appropriate or inappropriate medication that impairs the patient, who in turn puts others at risk, the practitioner was under a duty to exercise reasonable care in making that decision to prescribe. The defendant psychiatrist in Vizzoni acted affirmatively by prescribing medication for his patient B.M.D. A risk to others may occur because of negligent treatment, such as prescribing inappropriate medication that impairs the patient, but it can also occur because of appropriate care of the patient, such as properly prescribing medication that impairs the patient. The Appellate Division stated: “Thus, the question is not whether the practitioner had a duty to act, but rather were the consequences of the act of prescribing medication foreseeable to the practitioner.” It then stated that “the issue in this case is properly framed as one of proximate cause, not the duty of care.” Based on its review of the record, the court found that the evidence did not show that the patient B.M.D. was impaired at the time of the crash. The plaintiff’s proofs that the patient was experiencing side effects of the medications such as dizziness, sleepiness, blurred vision and loss of coordination amounted to pure conjecture and speculation untethered to the observations of the police who had interviewed the driver at the scene of the accident and found no impairment.

While employing the Hopkins multi-factorial analysis for the determination of duty, in S.V. Judge Sabatino approached the question differently to reach the same conclusion as in Vizzoni. In contrast to focusing on proximate cause, he stated: “Breach or no breach, the injury must have been reasonably foreseeable to support liability.  In sum, there simply is no basis here to infer that this motor vehicle crash could reasonably have been foreseen by defendants when they discharged J.V. from their facility.” The patient was a middle-aged woman who began having psychiatric symptoms at the age of 18 with an eventual diagnosis of schizoaffective disorder and bipolar disorder. She received in-patient and out-patient treatment but had been without psychiatric episodes for about twenty years before the car crash incident. In August 2017, she threatened to kill herself which prompted a psychiatric evaluation. She agreed to a voluntary admission on the day of the evaluation.

While hospitalized, the patient received several anti-psychotic and other psychiatric medications. The medication doses and combinations were adjusted during her 14-day stay. She appeared to begin having delusions that other people were giving her cocaine and touching her belongings. Nonetheless, her condition seemed to improve during the hospitalization, and she asked to be discharged. She was attending group therapy, compliant with medication, and was eating and sleeping appropriately. She was referred to a psychiatric screening assessment with a note indicating some symptoms. However, the psychiatric screener and the psychiatrist who evaluated her both concluded that she did not meet the criteria for involuntary commitment. The statute requires proof the patient is dangerous to oneself or others in the “reasonably foreseeable” future.

The plaintiff’s expert criticized the decision to discharge as premature while her medications were being adjusted and that she was allegedly not sufficiently stabilized. There was no contention that the patient’s sister should have been warned that the patient was too unstable to drive a car or of any other dangers related to her condition. The plaintiff’s expert did not review the police report, the recorded statements obtained by the patient’s insurance investigator with contradictory versions of what happened in the crash, or the deposition of any of the fact witnesses. Significantly, in his deposition, the expert testified that he did not know what caused the patient to act in the way she did while driving. Proving that premature discharge is medical malpractice means not only proving that a doctor or hospital did not meet all standards of care in making the decision to discharge, but also that the premature discharge led to harm. Accordingly, Judge Sabatino concluded:

Given the absence of this critical element of foreseeability, we discern no grounds to impose a legal duty upon these defendants to protect third parties such as plaintiff who could have been passengers injured in a vehicle driven by J.V. after her discharge.  The sibling “relationship of the parties” did not make the crash foreseeable.  Nor did the “nature of the risk” or the “opportunity and ability to exercise care.”

He bolstered this conclusion by pointing out that the claim of a “premature discharge” of this voluntary mental health patient clashed with the terms of the civil commitment laws. The patient had requested that she be discharged after a 14-day hospitalization and, before being discharged, she was found to not be a danger to herself or others on an evaluation for involuntary commitment conducted in accordance with the statute. Invoking the fourth Hopkins factor of “the public interest” he stated that the premature discharge theory of liability actually ran counter to the civil commitment laws. By statute, a patient voluntarily admitted for psychiatric care “shall be discharged by the treatment team at the patient’s request” within 48 hours of the request unless the treatment team determined that there was a need for an involuntary commitment. Such an evaluation had been done but without finding an indication for the involuntary commitment because of danger to oneself or others “within the reasonably foreseeable future.” The theory of liability based on a supposed premature discharge was contrary to “these statutory requirements that are designed to honor a patient’s liberty and autonomy.” 

Use of foreseeability as a “crucial element” in deciding whether imposition of a duty on an alleged tortfeasor is appropriate and well engrained in New Jersey law. The Vizzoni court referred to both Section 41 and Section 7 of the Restatement (Third) of Torts. Section 7 presents an intriguing challenge.Comment j addresses the proper role for foreseeability in determining duty. It states:

Despite widespread use of foreseeability in no-duty determinations, this Restatement disapproves that practice and limits no-duty rulings to articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.

However, in Coleman v. Martinez, the Supreme Court noted that Vizzoni did not adopt Section 41 and commented that while the court typically gave “considerable weight” to views expressed in the Restatement, it concluded that “the particularized foreseeability test established in our jurisprudence readily covers whether a mental-health practitioner could be found to owe a duty of care for harm caused by a patient under a particular set of factual circumstances.” Similarly, in the more recent decision of Estate of Campbell v. Woodcliff Health & Rehabilitation Center, the Appellate Division stated that “no New Jersey published case … has looked to the Restatement to establish the existence and scope of a physician’s duty to a third party.” Thus, in the context of mental health malpractice claims, this will remain a fact-sensitive determination.

A recent article in the Journal of the American Medical Association (JAMA) triggers a question as to whether the standard of care to evaluate claims for medical malpractice should be changed. For decades, the New Jersey Model Civil Jury Charge has instructed jurors to measure the conduct of a defendant physician against the “knowledge and skill normally possessed and used by the average physician,” either as a general practitioner or specialist in that field, having regard to the state of scientific knowledge at the time that he/she or she attended the plaintiff. The jurors are further instructed that ordinarily based on common knowledge and without technical training, they cannot determine what conduct constitutes standard medical practice. The standard of practice by which a physician’s conduct is to be judged must be furnished by expert testimony and the jurors should not speculate or guess about the standards of care but rather should determine the applicable medical standard from the testimony of the expert witnesses they have heard during the trial.

The case law has viewed the applicable standards as those which are “generally recognized and accepted by the branch of the profession to which [the physician] belongs as the customary and proper methods of diagnosis or treatment of the physical or mental condition concerned in the inquiry.” The JAMA authors highlight the May 2024 action of the American Law Institute in approving the first-ever restatement of the law of medical malpractice. The JAMA article emphasizes that the new Restatement “shifts away from the traditional reliance on customary practice toward a more patient-centered concept of reasonable medical care.”

The official text of the Restatement (Third) of Torts: Medical Malpractice has not yet been published.  The article quotes Section 5 which provides: “The standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.” (The authors’ quotations come from Tentative Draft No. 2 which is approved as representing the Institute’s position at this time.) Relevant circumstances for determining reasonable care include:

(1) the patient’s medical condition and medically relevant personal characteristics;

(2) the state of medical knowledge and the treatment options available at the time;

(3) resources available to the provider in the particular location or practice setting;

(4) whether the professional standards described in Subsection (a) differ among groups of providers; and

(5) any representations the provider made to the patient or public about the provider’s level of care, skill, knowledge, experience, or scope of practice.

The distinction between a standard based on customary practices and the standard of reasonable care is essentially the difference between what physicians do and what physicians should do. This has been a matter of debate in both the legal profession and among physicians for many years.  The leading case to which proponents of a patient-centered reasonable care standard point to is Helling v. Carey decided in 1974 by the Washington State Supreme Court.  

The plaintiff in Helling was a 32-year-old woman who was not screened for glaucoma and became blind. The standard of care accepted in the ophthalmology specialty did not call for routine screening of patients under the age of 40 since the risk in that age group was only one in 25,000. Despite the defendant having adhered to this customary practice, the court concluded that the physician was negligent.

Comment c to Section 5 notes that Helling “has been roundly criticized and is regarded as anomalous.” The new Restatement provision does not go as far as Helling and recognizes that customary practice has a role in determining reasonable and acceptable medical conduct. It quotes from a 2000 law review article by Professor Philip Peters who has written extensively on this topic:

Although it continues to be physician-based, the reasonable physician standard potentially differs from a custom-based standard of care in one crucial respect. It asks what a reasonable physician would have done, not what is usually done.

In a more recent article, Professor Philips stated that about forty percent of the states were using reasonable care language. Helling has not been cited in any reported New Jersey decision. However, in Klimko v. Rose, the New Jersey Supreme Court in a dictum had seemed to edge away from the enshrined professional custom for determining the standard of care. While the Court decided this case based on a common knowledge standard, in a footnote it commented:

[W]hen a risk is obvious and a precautionary measure available, an industry or professional standard or custom that does not call for such precaution is not conclusive if, regardless of the standard or custom, the exercise of reasonable care would call for a higher standard, i.e., for precautionary measures.

There does not appear, however, to have been any significant further movement in that direction. For example, in Marshall v. Klebanov, the Supreme Court adhered to the phraseology of “application of accepted medical practice” in describing a physician’s duty of care. But at the same time, the Affidavit of Merit Statute imposes an obligation on one seeking to bring a professional malpractice claim to provide an affidavit that “the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” The Patients First Act, focused specifically on medical malpractice, requires that an expert providing an affidavit or testimony “on the appropriate standard of practice or care” must have certain qualifications. Is there a meaningful distinction between “accepted” and “acceptable” or “appropriate” or is this just an exercise in the subtleties of semantics?

Section 6 of the new Restatement makes clear that a breach of the standard of care set out in Section 5 is to be established “through the testimony of a qualified expert” unless the res ipsa loquitur doctrine applied, or the breach was a matter of common knowledge. Another exception would be if the healthcare provider admitted a breach of the standard of care. Section 6 also indicates that proof that the healthcare provider complied with a practice guideline established by an authoritative body is sufficient to support, but not compel, a finding that the provider did not breach the standard of care under Section 5. The JAMA article describes the explicit inclusion of practice guidelines as a move toward evidence-based medicine. Significantly, the use of practice guidelines is noted in Comment f to Section 6 to be “asymmetric” in that practice guidelines can only be used to “support compliance with, but not to establish a violation” of the standard of care. This limitation should ameliorate concerns that practice guidelines will be imposed and result in so-called cookbook medicine.

The American Law Institute is a non-profit organization composed of judges, law professors, and practicing attorneys that seeks to clarify and modernize common law principles in its Restatements of the Law series and Model Codes.  In part it not only states what the law is but also what it should be. The American Law Institute is equivalent to the Institute of Medicine or the National Academy of the Sciences. Its publications are repeatedly cited by courts across the country.

In connection with its medical malpractice decisions, the New Jersey Supreme Court has periodically looked to the Restatement of Torts in its variation iterations. For example, in  Buckalew v. Grossbard, as part of its consideration of the applicability of the res ipsa loquitur doctrine to a medical malpractice case, the Court noted the comments on this topic in the Restatement. In Glassman v. Friedel, the Court pointed to the Restatement as reflecting the nearly universal adoption of comparative responsibility for the allocation of tort responsibility.

It remains to be seen what impact the new Restatement standard will have. To date, there are no reported opinions examining the new Restatement concerning medical malpractice.

The January 30, 2025 issue of the New England Journal of Medicine contains an article entitled “Providing Interstate Telehealth Abortion Services to Patients in Restrictive States.” In the second sentence, the authors write: “The complexities of telehealth regulation in the United States often result in areas of liability and concern for clinicians providing abortion services and for states attempting to protect patients and clinicians.”

Those concerns were undoubtedly intensified on January 31 when Dr. Margaret Daily Campbell was indicted by a Louisiana grand jury for violations of that state’s anti-abortion law. The charge against Dr. Campbell, a New York licensed physician, was that she caused an abortion to occur in Louisiana by providing a pregnant female minor with abortion-inducing drugs that had been obtained by the patient’s mother through the internet from Dr. Campbell’s practice. The Louisiana District Attorney has stated that the pregnant female wanted the pregnancy and had a “reveal party” planned but her mother coerced her into terminating the pregnancy. However, this is not the first time criminal charges have been brought against physicians prescribing through the internet.

The indictment of Dr. Campbell follows the lawsuit against her commenced on December 12, 2024 by the Texas Attorney General seeking injunctive relief and civil penalties of $250,000 based on Dr. Campbell having prescribed and provided the medications mifepristone and misoprostol to a 20-year old pregnant female without being licensed to practice medicine in Texas. The woman did not inform the biological father of her pregnancy but eventually was taken to the hospital because of severe bleeding. There, the biological father learned that the woman had been pregnant and on returning home discovered the boxes that contained the medications. He then provided information to law enforcement authorities.

The lawsuit is premised on Dr. Campbell’s unlicensed practice of medicine in Texas together with the provision in Texas law that an abortion may be performed in Texas only by a physician licensed to practice medicine in Texas. Moreover, under Texas law a person is prohibited from providing telemedicine services unless holding a full Texas license.

The NEJM authors refer to “shield laws” that have been enacted in over twenty states since the 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. These laws include provisions protecting against interstate extradition, subpoenas, or summons to serve as a witness in court; prohibiting support of another state’s investigations or prosecutions; and limiting adverse professional consequences, such as loss of licensure, as well as medical malpractice protections and data-privacy requirements.

New York has a shield law. It includes reproductive health services “whether provided in person or by means of telehealth or telehealth services” and when these are provided by a person licensed in New York and physically present in New York they are “a legally protected health activity if the service or care is permitted under the laws of this state, regardless of the patient’s location.”

New Jersey also enacted two bills providing protection for abortion services that were discussed in a September 2022 posting on this blog. The statute blocking extradition does not explicitly refer to care provided over the internet to out-of-state patients.

In response to the Texas lawsuit, New York Governor Kathy Hochul stated her intent to maintain the safe harbor status of New York for abortion providers and patients and both the Governor and Attorney General Letitia James later responded negatively to the criminal filing in Louisiana.

The NEJM authors concluded: “Clinicians who rely on shield laws to provide telehealth abortion services to patients in abortion-restrictive states face uncertain legal protections.” The cases against Dr. Campbell will test the effectiveness of these laws in both a civil and criminal context.

While the Louisiana indictment appears to be the first criminal case concerning abortion care since the overturning of Roe v. Wade by Dobbs, it is not the first instance of a criminal prosecution of a physician located in one state for using the internet to prescribe medication for a patient located in a different state. In the 2007 decision of Hageseth v. Superior Court, a Colorado physician had prescribed a generic form of Prozac for a Stanford University student experiencing a depressive episode who had ordered the medication through an interactive website. The physician was charged with the unlicensed practice of medicine in California. He moved to dismiss the indictment asserting that a non-resident of the state who had never been in the state cannot commit an offense within the state. On appeal, the intermediate Court of Appeal affirmed the denial of the motion to dismiss and rejected the claimed lack of extra-territorial power in a criminal case where the out of state conduct had a detrimental effect in California that the defendant knew could occur. The California Supreme Court declined to review the case further. In February 2009, Hageseth pleaded no contest to the felony charge and received a jail sentence of nine months.

The major premise of the criminalization of abortion services through the internet is that the location of the patient at the time of treatment or diagnosis determines where a practitioner is engaged in the practice of medicine and that a state is empowered to define the terms and scope of the practice of that profession. In 1899, the Supreme Court recognized that the regulation of the practice of medicine was well within the police power of the state government. The police power to regulate is among the powers reserved to the states by the Tenth Amendment. The Interstate Medical License Compact facilitating a physician obtaining licensure in multiple states to be able to practice across state lines is built on the Tenth Amendment. As enacted in New Jersey, it adopts “the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter.” The Interstate Medical License Compact Commission issued a memorandum in December 2023 regarding the impact of Dobbs on medical practice across state borders that provides scant support for internet prescribing without a physical presence in proximity to the patient.

However, the circumstances of abortion-inducing medication are significantly different with a complexity that suggests rather than asking where the care was provided, the question should be where did the abortion occur? The following hypothetical illustrates the conundrum:

Imagine a provider located in New York communicates via telehealth with a patient physically located in Pennsylvania. Because of Pennsylvania rules, the provider cannot mail the pills into that state, so the provider mails them to a P.O. box in New Jersey, where the patient picks them up. The patient, who is traveling to see family, then travels to Delaware, where she takes the mifepristone. Then she goes to Maryland a day later where she takes the misoprostol. Then, when she finally arrives in Virginia, she expels the products of conception. There are six different states in this admittedly far-fetched hypothetical—when and in which one did the abortion take place?

The Louisiana criminal indictment in particular presents a multiplicity of issues that will need to be addressed including conflict of laws questions as well as comity and reciprocity among states under the Privileges and Immunities Clause in Article 4, Section 2, Clause 1 of the Constitution. This encompasses circumstances where extradition to a requesting state may be refused. The impact of federalism and interstate commerce are also involved. This will not be an easy task.

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.