Request By:
Helen Howard Hughes
Kentucky Commission on Women
614A Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This opinion is in response to your May 1, 1980 request for the Attorney General's office to reconsider its interpretation of KRS 216.453(2) in OAG 79-109. The issue concerns the responsibility of a hospital offering emergency services to examine victims of sexual offenses and gather physical evidence from such examinations. OAG 79-109 dealt with a situation where a hospital felt it was impossible to comply with the statute. The opinion which follows here supersedes OAG 79-109.
KRS 216.453(2) states:
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.
Rules of construction of Kentucky statutes require that where the words are "clear and unambiguous . . . there is no room for construction and the statute must be accepted as it is written."
Griffin v. City of Bowling Green, 458 S.W.2d 456 (Ky. 1970) at 457.
KRS 446.080 states:
(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, . . .
(4) All words and phrases shall be construed according to the common and approved usage of language, . . .
The meaning of the statute and the legislative intent are clear. Any hospital offering emergency services is to provide that a physician be available at all times to examine victims of sexual offenses, and the physician, pursuant to a proper request, is to examine such persons for the purpose of gathering physical evidence.
Kentucky statutes and regulations do not seem to require that all hospitals have emergency rooms. Emergency services are not specifically mentioned in the definition of hospital (902 KAR 20:010 § 1 and 902 KAR 20:015 § 1), nor are they specifically listed with the functions or essential characteristics of hospitals (902 KAR 20:010 § 2 and 902 KAR 20:015 § 2). Regulations state what an "emergency room suite" must include (902 KAR 20:010 § 14) but do not indicate what services must be provided there.
It seems logical from the nature of emergency services that a hospital offering them would have a physician available at all times. Availability does not necessarily mean that a physician be at the hospital continuously but simply that a physician be on call at all times, available on short notice. It would also appear that an emergency room would be open and available at least to some extent 24 hours a day. In addition, services provided would cover a wide variety of medical problems including life-threatening situations. The statute makes it clear that if a hospital offers emergency room services, these must be extended to include victims of sexual offenses, including rape. There does not appear to be any reason for excluding examination of victims of sexual offenses from the services offered by hospital emergency rooms.
Furthermore, one would assume that in a properly run hosptial, records would be kept of all examinations and treatments made in an emergency room and that some of these records would be used as evidence in criminal or civil litigation.
There does not appear to be any reason to differentiate examination and recordkeeping for sexual offense victims from such activities for other victims potentially involved in criminal prosecutions. A hospital should not be able to avoid its responsibilities to victims of sexual offenses because of such a possibility.
This interpretation is supported by the penalty provision in KRS 216.990(3). It states, "Any hospital acting by or through its agents or employes which violates the provisions of KRS 216.453 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500)." It originally was written in 1974 to apply to KRS 216.453(1) which prohibits a hospital from denying admission to a person in need of emergency care simply because the person is unable to pay for such services. When KRS 216.453 was amended in 1978 to include paragraph 2, the penalty provision was not changed. Thus if a hospital offers emergency services, the legislature did not intend it to be able to avoid its responsibility to victims of sexual offenses; rather, the penalty section was extended to cover this situation.
It must be kept in mind that KRS 216.453(2) pertains only to Kentucky hospitals offering emergency services. With this in mind, it is our conclusion that all hospitals offering such services must include examination of victims of sexual offenses, including rape, and, upon a proper request, make such an examination for the purpose of gathering physical evidence. A hospital should not be allowed to differentiate as to emergency treatment simply because a sexual offense is involved.
If you have any further questions, feel free to contact this office.