Request By:
John Godfrey, Esq.
Assistant General Counsel
Health and Administrative Laws
Department for Human Resources
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of whether the Department for Human Resources, Bureau for Health Services may adopt a regulation 1 which will exempt a class of medical laboratories (hereinafter referred to as "physician laboratories" ) from application of KRS Chapter 333, the Kentucky Medical Laboratory Act, and regulations enacted thereto.
KRS 333.040 provides that:
"This chapter [KRS Chapter 333] applies to all medical laboratories within the state of Kentucky except:
(1) Medical laboratories operated by the United States government;
(2) Medical laboratories operated by hospitals licensed by the secretary for human resources;
(3) Medical laboratories operated and maintained exclusively for research purposes, involving no patient or public health service whatsoever."
Although the laboratories sought to be exempted by the proposed regulation are not within the classes of those exempted by the statute, it is contended that there is at least an implied exemption in KRS 311.550(8). This statute provides:
"Except as provided in subsection (9) of this section, the 'practice of medicine or osteopathy' means the diagnosis, treatment or correction of any and all human conditions, ailments, diseases, injuries, or infirmities by any and all means, methods, devices or instrumentalities." 2
The argument is that a physician may diagnose, treat or correct a condition, ailment, et cetera by any means which would include medical laboratories:
"The Department [for Human Resources] interprets this section of the Medical Practice Act [KRS 311.530 et seq. ] as authorizing a licensed physician to conduct his own laboratory tests in connection with the diagnosis and treatment of his own patients.
By way of analogy, let us consider the dispensing of drugs by a physician. A physician does not have to obtain a license to practice pharmacy in order to dispense drugs to his own patients. His license to practice medicine is his legal authority. On the other hand, if he dispenses drugs to persons other than his own patients, he would be in violation of the State Pharmacy Law." Letter from John Godfrey, Esq. to Robert F. Stephens, Attorney General, February 15, 1977.
It is our opinion that the broad authority given to a physician by KRS 311.550(8) is insufficient to create an exemption for physician laboratories from the reach of KRS Chapter 333. The practice of medicine is subject to the police power of the
Commonwealth, Reynolds v. Walz, 278 Ky. 309, 128 S.W.2d 734 (1939). Thus, it is beyond dispute that the legislature could prohibit a physician from dispensing medication to his own patients. Indeed, for example, there are specific exemptions in KRS Chapter 218A, the Kentucky Controlled Substances Act of 1972, by which physicians are authorized controlled substances to their patients, see KRS 218A.010(1)(a), (8)(a) and (8)(b) and (16).
Equally, the legislature could also require physician laboratories to be licensed. In this regard, KRS 333.030 is of significant if not controlling weight:
"Except as provided in KRS 333.040, no person shall construct, acquire, maintain, or operate a medical laboratory in this state unless a license therefor has been obtained from the department. A separate license shall be obtained for each location."
Clearly, therefore, physician laboratories are reached by KRS Chapter 333 by the plain and unambiguous wording of KRS 333.030 and 333.040, cf.
Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970).
We believe that to infer an exemption for physician laboratories by virtue of KRS 311.550(8) is to place more weight upon that statute than it is able to bear. The statute cannot be construed to authorize the physician to use or operate an unlicensed medical laboratory in the face of a clear policy that medical laboratories be licensed, see KRS 333.010. Such a construction creates an amendment to KRS 311.550(8) which is disfavored, cf.
Hallahan v. Sawyer, Ky., 390 S.W.2d 664 (1965). Second, it supplies an omission to KRS 333.040 which is not justified, cf.
Bedinger v. Graybill's Ex'r and Trustee, Ky., 302 S.W.2d 594 (1957).
We are compelled to interpret KRS 311.550(8) in harmony with KRS Chapter 333 to give effect to both, cf.
City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 (1939). Because KRS 311.550(8) does not authorize a physician to use unlawful means of diagnosis and treatment, we construe it to mean that a physician may utilize any medical laboratory as long as it is licensed.
Therefore, in view of the foregoing, we are of the opinion that the proposed regulation would not be lawful if adopted.
Footnotes
Footnotes
1 The proposed regulation reads as follows:
"Medical laboratories operated by a licensed physician, or group of licensed physicians, solely and exclusively in connection with the diagnosis and treatment of their own patients shall be exempt from the licensure provisions of these regulations. If any referred work is received or performed by such medical laboratories, all provisions of these regulations shall apply."
2 The exceptions provided in KRS 311.550(9) are not applicable to this situation.