Request By:
Representative Ron Cyrus
98th District
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
Pursuant to your request, this office has reviewed 78 BR 129 as to its constitutionality.
Sections 9(2) and 9(3) exonerate physicians for malpractice and negligence when injury or death results from the use of amygdalin (laetrile). This is incompatible with § 54 of the Kentucky Constitution which provides:
"The general assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property."
KRS Chapter 311 regulates the following three professions: physicians, osteopaths and podiatrists. On the other hand, Section 11 of 78 BR 129 attempts to regulate hospitals. We believe this violates § 51 of the Kentucky Constitution in that the legislation seems to relate to more than one subject and furthermore, this subject is not expressed clearly in the title. Perhaps this Section 11 should be a separate Bill relating to health care facilities and be codified under KRS Chapter 216.
Before leaving Section 11 of 78 BR 129, we point out that requiring a hospital to dispense a drug, since it is discretionary now, could be regarded as a taking of property without due process of law in violation of § 13 of the Kentucky Constitution and in violation of the Fourteenth Amendment to the United States Constitution. This argument of course fades if it can be established that requiring a hospital to do this is a valid exercise of the police power. But, this takes evidence and we have our doubts that it can be established when neither the Federal Drug Administration nor the American Medical Association approves of the use of amygdalin.
Section 1 of the proposed legislation provides that amygdalin is not a drug. Under KRS Chapter 217, only drugs are required to be dispensed with a physisian's prescription. If amygdalin is not classified as a drug, it is not necessary for a physician to write a prescription in order to obtain the substance. Therefore, if the legislature adopts Section 1 of your act, it is not necessary to make provisions for the use of a prescription. In addition, we point out that Section 1 should be included in KRS Chapter 217 rather than in KRS Chapter 311. Otherwise, there is another possible violation of § 51 of the Kentucky Constitution.