Request By:
Senator Joe Wright
Chairman, Interim Joint
Committee on Health and Welfare
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Esq., Attorney General; Mark F. Armstrong, Esq., Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of whether 80 BR 154 § 1(2), a bill proposed for pre-filing, violates the Kentucky Constitution § 54.
The provision in question provides as follows:
"(2) The medical examiner, coroner, or his appropriately qualified designee or any persons authorized under KRS 311.185 shall not be held liable in any civil or criminal action for failure to obtain consent of the next of kin. "
Ky. Const. § 54 provides as follows:
"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."
In Jacobs v. Underwood, Ky., 484 S.W.2d 855 (1972), the Court held that the protection of the phrase, "injuries to person or property," in Ky. Const. § 54 extends only to physical injuries to persons and physical damage to property, James v. Underwood, supra, at 857. Thus, the Court held that a statutory limitation on the right to sue a member of a legislative body for defamation of character was not in violation of Kentucky Constitution § 54 because it was not for physical injuries to person or physical damage to property. Kentucky recognizes that in the absence of another disposition by will, the next of kin of a decedent has a right of possession to the body which the law will protect from wrongful mutilation or mishandling, Streipe v. Liberty Mut. Ins. Co., 243 Ky. 15, 47 S.W.2d 1004, 1005 (1932) which includes the removal of tissues and organs, cf. Hazelwood v. Stokes, Ky., 483 S.W.2d 576 (1972) (Violation of spouse's right recognized when blood specimen was removed from body without consent but damages not awarded when specimen taken only minutes before blood completely removed from body incident to authorized embalming). Enclosed is a copy of OAG 75-580 (August 29, 1975) which contains a discussion of the subject.
Thus, while the Kentucky cases recognize the possessory interest of the next of kin in the body of the decedent, the answer to the issue here is whether a violation of this interest constitutes a physical injury to person or physical injury to property. In North East Coal Co. v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760, 764 (1934), the Court held that the right of the next of kin to bury a corpse and to preserve it was ". . . not a property right in the strict sense of the word." While the Pickelsimer case, supra, does not remove all doubt as to whether the right of the next of kin is a property interest, we believe it is sufficiently authoritative that the Court would uphold legislation limiting the right of recovery for injury to the interest, cf. Jacobs v. Underwood, supra, at 857-58 ("It is the duty of the court where questions are close relative to the constitutionality of statutes to construe the matter if possible in such a way as to preserve the statute.")
Thus, we are of the opinion that the constitutional validity of 80 BR 154 § 1(2) would be sustained against a claim that it attempts to limit recovery for physical damage injury to property in violation of Ky. Const. § 54. We are of this same opinion as to a claim that the proposed legislation attempts to limit recovery for physical injury because the injury suffered by the next of kin is mental distress, Hazelwood v. Stokes, supra, which is not a physical injury, Jacobs v. Underwood, supra.
Summary: We are of the opinion that the interest of the next of kin in the body of a decedent is not a property or personal interest which is within the protection of Ky. Const. § 54. Accordingly, Ky. Const. § 54 does not prohibit the legislature from limiting the amount of recovery when this interest is violated; and, therefore, 80 BR 154 § 1(2), quoted, supra, does not violate Ky. Const. § 54. Our opinion is limited and extends no further than the expression of it in this Summary.