Kentucky Ass'n of Chiropractors v. Jefferson County Medical Society

549 S.W.2d 817, 1977 Ky. LEXIS 414

• Court: Kentucky Supreme Court
• Decided: April 1, 1977
• Status: Published

Opinions

CLAYTON, Justice.

This is a consolidated appeal requiring that we determine whether chiropractors are included in the phrase “other person authorized by law” of KRS 333.150 and .160 so as to authorize them to submit specimens from the human body to state-licensed medical laboratories and to use the reports thereby obtained in diagnosing human ailments. After carefully considering the issue, we are of the opinion the General Assembly has not so empowered practitioners of chiropractic, and we therefore affirm the judgment of the circuit court.

This case arises from the following factual situation and statutory authority. KRS 333.240(3) prohibits state-licensed medical laboratories from accepting specimens submitted by and making reports to “persons who are not legally qualified or authorized to submit specimens to medical laboratories and to receive such reports.” KRS 333.160 enumerates those persons authorized to manipulate a patient for the collection of specimens as including “only a licensed physician, dentist or other person authorized by law,” and KRS 333.150 designates that “a medical laboratory shall examine human specimens only at the request of a licensed physician, podiatrist, dentist or other person authorized by law to use the findings of medical laboratory examinations . . .” At the commencement of this action, “chiropractic” was defined by KRS 312.015(2) as “. . . the science of locating and adjusting the subluxations of the articulations of the human spine and its adjacent tissues; . .” This section was amended, effective June 19, 1976, to now read “. ‘Chiropractic’ means the science of diagnosing and adjusting the subluxations of the articulations of the human spine and its adjacent tissues; . . . ” and a statutory definition of “chiropractor” was added by a new subsection — “. . . ‘chiropractor’ means one qualified by experience and training ... to diagnose his patients and to treat those of his patients diagnosed as having diseases or disorders relating to subluxations of the articulations of the human spine and its adjacent tissues by indicated adjustment of those subluxations and by applying methods of treatment designed to augment those adjustments . . .

International Clinical Laboratories of Kentucky, Inc., a medical laboratory licensed under the provisions of KRS Chapter 333, performed tests upon blood and urine specimens submitted to it by the Ken-tuckiana Center for Education, Health and Research, Inc., a nonprofit clinic and school for retarded children employing the services of chiropractors licensed under the provisions of KRS Chapter 312 and regulated by appellant Kentucky State Board of Chiropractic Examiners. The results of those tests were reported back to the chiropractors who used them for diagnostic purposes in providing chiropractic services to the children attending the school. When the Jefferson County Medical Society called these actions into question, International Clinical Laboratories and its director, Malcolm L. Barnes, M.D., petitioned for a declaration of rights in the Jefferson Circuit Court as to whether the chiropractors could take and submit such specimens to it and whether it was permitted to evaluate such specimens and report its findings back to the chiropractors for diagnostic purposes. Named as defendants in the action were all parties in interest, including the Jefferson County Medical Society; Kentuckiana Center for Education, Health and Research, Inc.; Commonwealth of Kentucky, Department for Human Resources; Commonwealth of Kentucky, State Board of Medical Licensure; and the Kentucky State Board of Chiropractic Examiners. The circuit court permitted the intervention of the Kentucky Association of Chiropractors, Inc., as a respondent-intervenor, and granted the request of the Kentucky Chiropractic Society to file an amicus curiae brief. Having determined that an actual controversy exists between the parties which is suitable for a declaratory judgment and that no issue as to any material fact exists, the court considered the motions of both sides for summary judgments, ruling in favor of the position that chiropractors are not permitted under Kentucky law to utilize the services of state-licensed medical laboratories in diagnosing human ailments, and holding that prohibiting chiropractors from so using such laboratories is not a denial of due process of law or of equal protection of the laws. These appeals, brought by the Kentucky Association of Chiropractors, Inc., and the Kentucky State Board of Chiropractic Examiners, result from that ruling.

In separate briefs, appellants argue that chiropractors are expressly and impliedly authorized to use medical laboratories for diagnostic purposes. Express authorization, they argue, has been given by a regulation duly promulgated by the Kentucky State Board of Chiropractic Examiners during the pendency of this action before the circuit court, and subsequently declared void by that court, as being inconsistent with the provisions of KRS Sections 312.015 to 312.-185, the statutes governing the practice of chiropractic. Implied authorization is argued to come from the statutory definition of “chiropractic” as it read prior to amendment in 1976 which, it is contended, confined the scope of a chiropractor’s permissible treatment but did not limit his realm of diagnostic procedures. It is further claimed in connection with this section that following its amendment, Kentucky chiropractors now have specific statutory authorization to perform the activities in question here, so that the case is now moot. Finally, reliance is placed on KRS 312.190, which authorizes chiropractors to sign death certificates and other unspecified legal documents “. with the same authority as members of other schools or systems of treatment,” as providing a broad inference that this would also permit the result sought here, the reasoning being that since the use of laboratory findings is necessary in many instances to diagnose the cause of death, in enacting this section the legislature was evidencing its intent that chiropractors be permitted to use these findings and that they be considered an “other person authorized by law” within the meaning of KRS 333.150 and .160. The regulation relied upon as express authorization, 201 KAR 21:020, Section 3, provides as follows:

“Chiropractors may examine, analyze and diagnose the patient and his diseases by the use of any physical, chemical, or thermal method reasonably appropriate to the case. Chiropractors qualified by training and skill for diagnosis and analysis of patients by use of radiographs, blood analyses or other methods of examination may utilize the services of persons authorized by law to perform the procedures involved in such methods of examination. Provided, however, that the board may upon notice and hearing find any licensee unfit to use specified methods of examination, and provided further that the board by duly promulgated regulation may prohibit or restrict use of specified methods of examination which the board determines are appropriately so regulated.” (1 Ky.R. 1254; eff. 7 — 2—75.)

While appellants are correct in their assertion that administrative regulations which have been duly adopted and properly filed have the full effect of law, nonetheless the power of the agency to adopt such regulations is limited to a direct implementation of administration of the functions and duties assigned to the administrative body by statute or executive order. KRS 13.082(1). As we read the regulation in issue here, we see it as an attempt to grant to chiropractors authority which had been previously withheld. It therefore goes well beyond the powers granted to the Board of Chiropractic Examiners by KRS 312.075, and the statutory definition of Chiropractic as originally written and as amended. As such, it is legislative in nature and in violation of Sections 27 and 28 of the Kentucky Constitution. In Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418 (1948), we recognized that the power to make regulations is not the power to legislate in the true sense, and the statute which is being administered may not be altered by the exercise of a power to make regulations thereunder. Regulations are valid only as subordinate rules and when found to be within the framework of the policy defined by the legislature. We therefore can find no error in the circuit court’s declaring this regulation void.

We also cannot sustain appellants’ argument of implied authorization. In determining the intent of the General Assembly in enacting legislation, the primary rule is to ascertain the intention from the words employed in enacting the statute, rather than surmising what may have been intended but was not expressed. Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247, 249 (1962). As correctly pointed out by the circuit court in its opinion, the language of the original statutory definition of “chiropractic” gives absolutely no authorization for the collection and submission of human specimens to a medical laboratory, but merely authorizes the location and adjustment of partial dislocations of joints of the spine and its adjacent tissues. We thus can find no evidence from the definition as originally worded of any intent by the General Assembly to authorize any activity by chiropractors involving medical laboratories. Neither do we believe that the amendment of KRS 312.015 by the substitution of “diagnosing” for “locating” and the addition of the new subsection (3) defining “chiropractor” now provides such authorization, for again, the wording of the statute does not provide even an inference that such authorization was intended. To the contrary, by the addition of a subsection (4) enumerating the fields of medicine within which the practice of chiropractic is not to be included, the inference results that the General Assembly intended to make no fundamental change in the practice of chiropractic by these amendments.

Appellants’ reliance on the statute permitting chiropractors to sign death certificates and other legal documents is similarly ill-placed. An examination of the relevant statutes shows that while KRS 312.190 permits chiropractors to sign death certificates and KRS 213.080 requires the death certificates contain the cause of death, neither of these statutes authorizes the removal of specimens from the human body for submission to laboratories. Where it is contemplated that circumstances surrounding death might require examination utilizing the facilities of a medical laboratory, KRS 72.070 and .080 specifically limit such examinations to be made by a surgeon, physician or chemist. We therefore conclude the authority to sign a death certificate and to state the cause of death does not carry with it the authority sought to be recognized here.

Appellants’ final contention is that prohibiting chiropractors from employing the services of medical laboratories in the manner envisioned constitutes a violation of substantive due process of law and of equal protection of the laws, contrary to the Fourteenth Amendment to the United States Constitution. We disagree. The Fourteenth Amendment permits states wide discretion in enacting laws which affect some group of citizens differently from others, the due process or equal protection safeguards contained therein being offended only if the resultant classifications or deprivations of liberty rest on grounds wholly irrelevant to a reasonable state objective. McGowan v. State of Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Therefore, unless a statutory classification is arbitrary, or not founded on any substantial distinction suggesting the necessity or propriety of such legislation, the courts have no right to interfere with the exercise of legislative discretion. In the instant case, we are of the opinion the classification of chiropractors as a distinct class of persons who may not collect and submit specimens from the human body to a medical laboratory for purposes of diagnosis does not violate the Fourteenth Amendment guaranteeing equal protection of the laws, nor does it amount to a violation of life, liberty or property without due process of law. This view is based on our recognition that it is clearly within the province of the General Assembly to determine that, to protect the public health and general welfare, only those persons admitted to the practice of medicine ¹ should be authorized to perform the activities in question here.

The judgment is affirmed.

All concur except JONES and LUKOW-SKY, JJ., who dissent. ⅜

1 . Which in Kentucky clearly does not include practitioners of chiropractic, KRS 312.015(4); Neagle v. State Highway Department, Ky., 371 S.W.2d 630 (1963).