Request By:
Charles B. Severs, M.D.
5117 Educlid Avenue
Louisville, Kentucky 40272
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a disagreement with the county clerk over the interpretation of KRS 402.120, the law on premarital examination and tests. The local attorney has apparently advised the county clerk that a blood test for syphilis is all that is required. The clerk's office is informing marriage applicants and physicians of this, but is requiring that the physician must sign the form. The form states that the person named above has submitted to an examination, including the above laboratory test for syphilis. Some physicians have crossed out this part of the form and the clerk has issued licenses anyway.
You interpret KRS 402.120 as requiring an examination; and you feel that the clerk is violating it in issuing marriage licenses to persons who can only produce a physician's statement of the presence or nonpresence of syphilis upon examination. You request our opinion as to that issue.
Precisely, the question is: What kind of examination did the General Assembly provide for in KRS 402.120 and related statutes?
KRS 402.120 reads:
"(1) Each person making application for a marriage license shall, at any time within fifteen (15) days prior to the application, be examined by a physician authorized to practice medicine in Kentucky as to the existence or nonexistence of any stage of syphilis infection that is or is likely to become communicable.
"(2) No county clerk shall issue a marriage license to any person who has failed to present and file with him either a medical certificate indicating that the examination required by this section has been made, or an order from a court of proper jurisdiction directing him to issue the marriage license. "
We ruled in OAG 69-453, copy enclosed, that the medical certificate is a part of the marriage license application and must be filed along with the application for the license within 15 days of the taking of the exam.
In the revision of the statutes in 1942, the present KRS 402.120 was created out of a more detailed statute enacted in 1938 [Ch. 120], referred to earlier as Sec. 2105a-1 of the Kentucky Statutes. The 1938 act required marriage applicants to be examined as to the existence or nonexistence in such persons of "any venereal disease. " The county clerk was prohibited from issuing a license to any person who failed to present and file with the clerk a certificate setting forth that such person is free from any venereal disease, except in pregnancy cases arising outside of wedlock. The medical exam was to include physical examination and laboratory tests, which were to include a Kahn test for syphilis, a dark field test where indicated, and a microscopic test for gonococci when indicated.
KRS 402.130 throws additional light on the examination to be made. It reads:
"The medical examination required by KRS 402.120 shall include a complete history, such physical examination as will reveal any existing clinical evidence of a syphilis infection, and a laboratory test or tests approved by the department for human resources. All laboratory tests required by this chapter shall be made by a laboratory approved by the department for human resources. Any laboratory test made by the department for human resources shall be made free of charge. The medical certificate shall be made on a form prescribed by the department for human resources. "
KRS 402.140 must also be read together with KRS 402.120 and 402.130. KRS 402.140 provides:
"If, on the basis of a laboratory test or tests, and the medical examination, the examining physician finds no evidence of any syphilis infection, he shall issue a medical certificate to that effect to the applicant, and if he finds evidence of a syphilis infection, a medical certificate shall be withheld until the applicant has undergone additional clinical examination and laboratory tests, by the same or another physician authorized to practice medicine in this state, to determine the existence or nonexistence of a syphilis infection. If the existence of a syphilis infection is determined, the applicant shall immediately become subject to the rules and regulations adopted and promulgated by the state board of health to prevent persons having a syphilis infection in a communicable stage from transferring such infection to other persons, and a medical certificate shall be issued only when the regulations of the state board of health for prevention of the spread of syphilis have been fully complied with."
Since KRS 402.120, 402.130, and 402.140 relate to the same subject, the premarital medical examination, they must be read together, as being in pari materia.
Economy Optical Co. v. Kentucky Bd. of Optometric Examiners, Ky., 310 S.W.2d 783 (1958).
From reading KRS 402.120 in its literal and explicit aspect, it is clear that by 1942 the General Assembly had narrowed the medical exam to that examination by a licensed Kentucky physician, calculated to reveal only the existence or nonexistence of any stage of syphilis infection that is communicable or is likely to become communicable. KRS 402.130 underscores the narrow range of the examination by providing that the medical examination required by KRS 402.120 shall include a complete history, such physical examination as will reveal any existing clinical evidence of a syphilis infection, and a laboratory test or tests approved by the Department for Human Resources. The medical certificate must be on a form prescribed by the Department for Human Resources. KRS 402.140 further confirms the narrow range of examination by providing that if on the basis of a laboratory test or tests, and the medical examination, the examining physician finds no evidence of any syphilis infection, he shall issue a medical certificate to that effect to the applicant. If he finds evidence of a syphilis infection, a medical certificate shall be withheld until the applicant has undergone additional clinical examination and laboratory tests, by the same or another physician authorized to practice medicine in Kentucky, to determine the existence or nonexistence of a syphilis infection.
It is our opinion, in reading the above three statutes together, that the medical examination is narrowly restricted to only that examination calculated to reveal the existence or nonexistence of a syphilis infection. Such medical examination must include a physical examination as will reveal any existing clinical evidence of a syphilis infection, a complete history of any such infection so observed, and a laboratory test or tests approved by the Department for Human Resources. The DHR premarital medical certificate form contains the applicant's name and address, the data as to the blood test [not result], and the certificate of the physician conducting the medical examination, who certifies that the applicant above submitted to an examination, including the above laboratory test for syphilis, a report of which he has received, and in his opinion the person is not [if that is the case] infected with syphilis in a stage that is communicable or likely to become communicable. Thus the certificate form is couched in terms of what the statutes call for.