Request By:
William H. Cox, M.D.
President
Bourbon County Medical StaffJoel M. Ellis
Administrator
Bourbon County Hospital
525 High Street
Paris, Kentucky 40361
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 whether a hospital will violate KRS 216.453 by referring victims of sexual offenses to another institution.
KRS 216.453(2) provides:
"Every hospital of this state which offers emergency services shall provide that a physician is available on call twenty-four (24) hours each day for the examinations of persons reported to any law enforcement agency to be victims of sexual offenses as defined by KRS 510.010 to 510.140. The physician shall, upon the request of any peace officer or prosecuting attorney, and with the consent of the reported victim, or upon the request of the reported victim, examine such person for the purpose of gathering physical evidence. "
You state that the services of a gynecologist or a pathologist are not available. Accordingly, it is your plan to refer victims to a nearby "Rape Crisis Center" where the required medical examination may be performed. Your question is whether this referral will comply with the requirement of KRS 216.453(2), supra.
The statute itself does not require the examining physician to be a gynecologist or a pathologist. Thus, the unavailability of these two specialists does not, of itself, alter the legal obligation of the hospital. We believe, however, that your letter raises another serious question of public interest.
We are advised that hospitals in some areas of the Commonwealth find it difficult, if not impossible, to obtain the services of physicians which will be continually available to examine victims of sexual offenses. The difficulty is caused by such factors as the limited number of physicians in the area and the refusal of some physicians to become involved in what may later become a legal proceeding.
We are of the opinion that a hospital must make a good faith effort to comply with the statute. That is, the hospital must make a good faith effort to secure medical services which will be available in the emergency room maintained by the hospital. If it is impossible for the hospital to secure these medical services, the hospital may fulfill its legal obligation under the statute by entering into an arrangement with another medical facility in which the required medical services can be provided.
We stress that before the hospital enters into such an arrangement it must be impossible for the hospital to provide the services in its own emergency room. We have found only one case in this jurisdiction which explicitly holds that impossibility of performance voids the statute, see
Sutton v. Rose, 224 Ky. 156, 5 S.W.2d 892 (1928). In the reported cases in which it has been argued that a particular statute is void because it is impossible to perform, the Court has usually declined to reach the legal merits of the argument and instead relied on a factual determination that it was possible to comply with the statute, see e.g.,
Board of Trustees of Policemen's Pension v. Schupp, 223 Ky. 269, 3 S.W.2d 606 (1928).
We think the deciding factor in the situation presented here is that the referral system will carry out the legislative intent of KRS 216.453(2); namely, the examination is for the purpose of "gathering physical evidence. " Thus, if use of the referral system will still permit physical evidence to be obtained, the purpose of the act is effectuated. Thus, our construction which fulfills the legislative intent is proper,
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969).
In summary, it is our opinion that under KRS 216.453(2) when it is impossible for a hospital, which provides emergency room services, to provide that a physician will be available on call twenty-four hours each day to examine victims of sexual offenses, the hospital may enter into an arrangement with another facility which can provide such medical services so long as the referral arrangement does not frustrate the statute's purpose of gathering physical evidence of the offense. Our opinion is limited to the administration of KRS 216.453(2) and does not address the obligation, if any, of the hospital to treat the victim of a sexual assault nor its liability, if any, for failure to do so.