*1
817
room
301, 223
(1950).
operating
issued no orders to the
staff
P.2d 471
This
36 Cal.2d
ety,
legal
regard
accounting
scalpel
that a
to the
ignore
principle
the
tois
masters,
the
servant of two
which conflicted with those of
may be the
blades
act,
Consequently,
if
operating
at one time as to one
the
room
employers,
Hospital.
joint
surgeon
as servants of both the
service to one does not involve
staff acted
as a
hospital
other.
matter of law.
of the service to the
abandonment
2d,
(1957).
Agency,
226
Sec.
Restatement
facts of this case which we have
The
often,
tediously
Frequently,
application
if not most
related mandate the
ipsa loquitur”.
who is
the doctrine of “res
Jew
employee
nurse or other
hospital
v.
Hospital
sur
Association of Louisville
physician
lent to the
or
temporarily
ish
Lewis, Ky.,
(1969).
299
Once
every realistic sense continues to
geon, in
applied
jury
right
is
had a
carry
hospital
on her
duties. Her work is of
doctrine
infer,
did,
operating
as it
that the
room
employers,
interest to both of two
mutual
duty
accurately
hospital,
failed in its
account
surgeon
or
and the
staff
physician
scalpel
and that such failure was
performed
to effect their common for
blades
causing
scalpel
supe
factor
respondeat
doctrine of
a substantial
purpose. The
left in Hart’s bladder with at
equally applicable to both
to be
rior is therefore
blade
Sugar
protracted
Dickerson v. American
bad results. This
tendant
employers.
Co.,
course,
supra.
chargeable
Am
to the
Refining
negligence
Martin v. Perth
surgeon.
Hospital,
N.J.Super.
General
as it is to the
boy
hospital
(1969).
Wagner,
ally perceive probably this is due to an un feeling
unarticulated that it would be impose liability hospital
just on only obeyed
where the nurse has the orders surgeon. superior, physician her or recognize duty obey that the nurse’s
We exculpates hospital
such orders her and her results employer responsibility for the OF CHIRO- KENTUCKY ASSOCIATION orders, competent execution of the PRACTORS, INC., Appellant, obviously improper unless the orders are so ordinarily prudent that the nurse would v. result, obey them. When is the exculpation MEDICAL JEFFERSON COUNTY it is so because the nurse’s obedience to al., Appellees. et SOCIETY negligence, does not constitute orders consequently, there is no basis for vicarious STATE BOARD OF KENTUCKY liability hospital. is far differ This EXAMINERS CHIROPRACTIC general from a uncritical elimina ent al., Appellants, et hospital’s liability tion of the under respondeat superior solely be doctrine of MEDICAL COUNTY JEFFERSON was lent employee nurse or other cause the al., Appellees. et SOCIETY surgeon. physician Kentucky. Supreme Court beyond in this case It is cavil accounting scalpel blades the accurate April 1977. surgeon interest to both” “of mutual accounting hospital, that such an e., the purpose”, their common i. “effects surgeon patient, and that the
cure of
819 *2 Laboratories of Ken-
International Clinical Inc., Barnes, and Malcolm L. M.D. tucky, CLAYTON, Justice. appeal requiring
This is a consolidated *3 whether that we determine phrase person “other included are by law” of 333.150 and .160 authorized KRS specimens to authorize them to submit so as body from the human to state-licensed reports laboratories and to use the medical diagnosing human ail- thereby obtained carefully considering the is- After ments. opinion As- sue, are of the the General we practitioners sembly empowered has not so and we therefore affirm chiropractic, of the circuit court. judgment following factu- case arises from the This authority. statutory KRS al situation 333.240(3) prohibits state-licensed medical accepting specimens sub- laboratories from “persons making reports mitted legally qualified are not or authorized who specimens to medical laboratories to submit reports.” and to receive 333.160 such enumerates those authorized to ma- spec- a for the collection of nipulate physi- including “only as a licensed imens cian, person or other dentist law,” designates and KRS 333.150 that “a examine human laboratory shall medical only request at the of a licensed specimens Anggelis, Wills, Timothy Ang- John C. C. other podiatrist, dentist or physician, Bunch, P.S.C., gelis, Lexington, Vimont & findings by law to use the appellant Kentucky Chiroprac- for Ass’n of . . .” laboratory examinations tors, Inc. action, “chi- the commencement of At Gen., Stephens, 312.015(2) Robert F. Atty. William was defined KRS ropractic” Pollard, Gen., Frankfort, Atty. W. Asst. locating and ad- . . the science “. Burchett, Glasgow, appellant Dale for Ken- the articulations justing the subluxations of tissues; tucky Bd. of Examiners. adjacent State its spine of the human amended, was ef- This section . .” Wedekind, Jr., Stites, Carl L. McElwain 19, 1976, June to now read “. fective Fowler, Louisville, for appellee & Jefferson ‘Chiropractic’ diagnos- means the science of Cty. Medical Soc. adjusting the subluxations of the Jr., Frankfort, Godfrey, ap- John P. for spine of the human and its articulations pellee Kentucky, Dept, Com. for Human ” tissues; statutory adjacent . . . and a Resources. “chiropractor” was added definition Yessin, Frankfort, Rudy appellee for . ‘chiropractor’ . subsection —“. new Kentucky State Bd. of Medical Licensure. by experience and qualified means one Warner, Wood, Goldberg, training diagnose T. Ped- ... his William Louisville, Stansbury, patients diagnosed ley appellees & treat those of his and to having diseases or relating position disorders per- subluxations of articulations of the hu- Kentucky mitted under law to utilize the spine adjacent man tissues indi- state-licensed services of medical laborato- adjustment cated of those subluxations and ailments, diagnosing ries in human by applying designed methods of treatment holding prohibiting chiropractors augment adjustments those . . . using such laboratories not a denial process equal protection due of law or of International Clinical Laboratories of appeals, brought by Kentucky, Inc., laws. These a medical laboratory li- Inc., Kentucky provisions Chiropractors, censed under the Association of Chap- of KRS 333, performed upon ter tests blood and Board Chiro- specimens Examiners, ruling. urine submitted Ken- practic result from that Education, Center tuckiana Health and briefs, argue separate appellants Research, Inc., nonprofit clinic and school *4 impliedly and chiropractors expressly employing for retarded children the services for to use medical laboratories authorized chiropractors provi- of licensed under the authorization, Express diagnostic purposes. Chapter regulated by sions of 312 and regulation they argue, given by has been Kentucky appellant Board of Chiro- State Kentucky promulgated by the duly practic Examiners. The of results those during Chiropractic Examiners Board reported were chiroprac- tests back the pendency of action before the cir- the this diagnostic tors who used them for purposes court, declared void subsequently cuit and providing chiropractic in services to the court, the being that as inconsistent with attending children the school. When the provisions of KRS 312.015to 312.- Sections County Society Jefferson Medical called governing practice of the statutes the question, into these actions International Implied chiropractic. authorization is ar- director, its Mal- Clinical Laboratories and gued statutory the to come from definition M.D., Barnes, petitioned colm L. for a decla- “chiropractic” read prior as it amend- rights ration Jefferson Circuit which, contended, in is ment it con- chiropractors as to whether the could Court chiropractor’s scope permissi- the fined specimens to it take and submit such and but his ble treatment did limit realm permitted whether was evaluate such is diagnostic procedures. It further claimed report findings specimens and its back to with that in connection this section follow- chiropractors diagnostic purposes. the amendment, Kentucky Named as defendants in the action were all specific statutory have now authorization interest, including parties in the Jefferson here, question perform the activities in County Society; Medical Kentuckiana Cen- Finally, the case is now moot. reliance that Education, Research, Health ter for 312.190, placed on KRS which authorizes Inc.; Kentucky, Depart- Commonwealth sign chiropractors to death certificates and Resources; for Human ment Common- unspecified “. legal documents other Kentucky, wealth of State Board of Medical authority the same members of Licensure; State Board treatment,” systems schools or other Chiropractic Examiners. The circuit providing a broad inference that this would the permitted court intervention of the here, permit sought also the result rea- Inc., Kentucky Association of Chiropractors, soning being that since the use of laborato- respondent-intervenor, granted as a findings ry necessary many instances request Kentucky Chiropractic of Socie- death, diagnose enacting cause an Having to file amicus curiae brief. ty evidencing the legislature this section was controversy an actual ex- determined that permitted parties its intent ists which is suitable between findings they con- these and that declaratory judgment and no use for a exists, an “other law” issue as to material fact sidered meaning considered motions of both sides within KRS 333.150 court summary upon as judgments, ruling regulation in favor of and .160. The relied authorization, 21:020, 201 KAR court’s express declaring Sec- no error in the circuit as follows: provides regulation void. examine, “Chiropractors may analyze appellants’ cannot sustain We also and his diseases diagnose In de implied authorization. argument chemical, any physical, the use the intent of the termining General Assem reasonably appropriate method thermal enacting legislation, primary rule bly in Chiropractors qualified by case. from the words training analy- and skill for to ascertain intention statute, patients by radiographs, enacting use of rather employed sis of analyses or other exam- may blood methods of been intend surmising than what have utilize ination the services of Gateway expressed. Con ed but was not proce- law to Wallbaum, Ky., 356 Company struction dures involved in such methods of exami- correctly point As Provided, however, nation. opinion, in its out the circuit court may upon hearing board notice and find defini language original statutory licensee unfit to specified use meth- “chiropractic” gives absolutely no tion of examination, ods of provided further submis authorization for collection and by duly promulgated regu- that the board specimens human to a labo sion of may prohibit lation or restrict use of ratory, merely but authorizes the location specified methods of examination which adjustment partial dislocations of *5 determines appropriately the board are so joints spine adjacent and tissues. 1254; (1 regulated.” Ky.R. 2—75.) eff. 7— We thus can no from find evidence appellants While are in correct originally definition as worded of in regula assertion that their administrative Assembly to authorize tent the General duly adopted tions which have been activity by chiropractors involving law, filed have properly the full effect of Neither we believe medical laboratories. do the power agency nonetheless of the to by the the amendment of 312.015 KRS adopt regulations such is limited to a direct “diagnosing” “locating” for substitution of implementation of administration of the (3) the addition of the new subsection assigned functions and duties to the admin “chiropractor” defining provides now such body by istrative statute or executive order. authorization, again, wording of the 13.082(1). regulation KRS As we read the provide statute does not even an inference here, issue attempt in we see it as an to that such authorization was intended. To grant chiropractors authority to which had contrary, the addition of a subsection previously been goes withheld. It therefore (4) enumerating the with fields of medicine well beyond powers granted to the is not practice in which the Board of Examiners KRS included, the inference results that to 312.075, the statutory definition of Chi to make no Assembly the General intended ropractic as originally written and as change in the of chi fundamental such, amended. As legislative it is na in ropractic by these amendments. and in violation ture of Sections 27 28 per- the statute Appellants’ reliance on Henry Constitution. In sign death certifi- mitting chiropractors to Parrish, Ky. 307 (1948), 211 418 legal similarly cates and other documents recognized power we that the reg to make ill-placed. An examination of relevant power legislate ulations is not the to sense, per- that while 312.190 statutes shows KRS true being statute which is sign death certificates mits administered be altered power requires the death certifi- regulations exercise of a to make KRS 213.080 death, Regulations thereunder. are cates contain the cause of neither of only valid subordinate rules and when found to be these statutes authorizes the removal of policy within the framework of the body defined from the human specimens submis- legislature. We therefore can find sion to laboratories. Where it is contem- 822
plated surrounding ques- circumstances the activities in require might death utilizing examination tion here. laboratory,
the facilities of a medical judgment is affirmed. specifically 72.070 and .080 limit such exam- by surgeon, physician inations to be made except All concur JONES and LUKOW- n We au- or chemist. therefore conclude the SKY, JJ., who dissent. thority sign death certificate and to Justice, JONES, dissenting. carry state the cause death does view, my sense public common authority sought recognized to be policy apply stattitory considerations here. in this enactments case. Because “common Appellants’ final contention is “public policy” considerations sense” and prohibiting employ from expressed foreign to the view as are ing the services of medical laboratories in majority, I dissent. the manner envisioned constitutes a viola language Aside from literal process substantive due of law and (set majority opinion) out statutes equal protection laws, contrary I are believe sufficient to authorize which the Fourteenth Amendment to the United laboratories, chiropractors to use medical disagree. States Constitution. We applied there are other considerations permits Amendment Fourteenth states determining legislative intent of enacting wide af discretion laws which Particularly is so as it KRS Ch. 333. group differently fect some citizens question related to the of whether chiro- others, equal process protection the due ” “other practors safeguards being contained therein offend While medical laboratories. the word- use only if the resultant classifications or passed by of an legislature act deprivations liberty grounds rest on major importance, application wholly irrelevant to a reasonable state ob is not common sense to be excluded. Ken- jective. Maryland, McGowan v. tucky Region Eight v. Commonwealth of 420, 425-426, U.S. S.Ct. *6 Kentucky, Ky., (1974). 507 489 S.W.2d Therefore, (1961). unless L.Ed.2d 393 a an question per- On the of who is “other or not statutory arbitrary, classification is law,” view is majority son authorized sug distinction founded on substantial opin- eloquent by majority its silence. The such gesting necessity propriety of or that, physi- simply only ion holds a licensed right no to in legislation, the courts have cian, manipu- [podiatrist, or a shall dentist] legislative of dis terfere with the exercise patient speci- a for the collection of late case, of we are cretion. In the instant majority my col- . . . The of mens. chiropractors of as opinion the classification ignore phrase, “or other leagues either may who persons distinct class of a (emphasis add- law” person hu specimens from the and submit collect ed), They in surplusage. or treat it as pur laboratory for body to a medical man give of this Com- chiropractors effect Four not violate the poses diagnosis does bone stripped monwealth a meat. equal pro guaranteeing teenth Amendment laws, to the will Statutory expression does it amount a law is nor an tection of the life, court is property Assembly. or without of the General When a liberty violation of statute, is the interpreting This view is based on faced with a as process due of law. here, legis- what the it is within the it must determine clearly our that case recognition statute, by enacting the Assembly to deter intended province of the General lature that, purpose it. Where protect public health behind mine well clear unam- welfare, persons language admit of the statute is general only those 1 expresses the intent of the biguous practice of medicine should ted Highway Neagle 371 Department, Ky., v. State does include Kentucky clearly 1. Which 312.015(4); (1963). S.W.2d chiropractic, practitioners create a Board of passed an act to Assembly must be inter- then the statute legislature, Examiners, regulate the the court as written. Griffin preted Green, chiropractic, provide penalties Bowling Ky., 458 City act, prohibit the and to for violation system un- other mode or practices legal principles it light In of these Acts, Ky. chiropractic. the name der “other au- phrase apparent 1928, 123, That act was pp. 416-421. Ch. been in- by law” would not have thorized 8, 1928. It is interest- on March approved had legislature statute if the cluded change significant that the most to note doc- for someone other than a not intended dealing chiropractors with in the statutes dentist, tor, podiatrist to use the facilities or a nearly For half about in 1976. came laboratory. phrase a medical re- chiropractic century the definition concise, meaning, is that everyday plain, act, 5, The 1928 Sec. the same. mained may to those mentioned in addition follows: chiropractic as defines laboratory findings. use the science of “Chiropractic is defined as opinion that as a matter I am of the the subluxations locating adjusting per- should be policy, public spine human the articulations of the diagnosis the best of to make a as to mitted adjacent and its tissues.” skill. Their professional their 758, approved House Bill the act of to the best treatment entitled (KRS 312.015(2))chiroprac- March give, diagnosis and this includes are able tic is defined: order to determine whether susceptible treatment or if the limitations of “Subject to Subsection section, opportunity ‘chiropractic’ harmful to him. An means would be 4 of this given chiropractor adjusting to weed diagnosing should be science of patients who not benefit out those would subluxations of the articulations might or adjacent from his treatment be harmed tissues spine and its human added). treatment. If the indicates his (Emphasis . .” patient might a be harmed chiro- view majority obvious It treatment, practic chiropractor should “diagnose” “diag- “locate” with equates permitted proper refer him to the Ah, me at the rub that finds there’s nosis.” healing arts. I believe the branch of my colleagues’ interpretation. variance prob- following example would indicate the Inter- in Webster’s Third Locate is defined chiroprac- A lem: Patient consult his Dictionary as follows: national complaining pain in his lower back. tor place to determine or indicate the “1. subluxation, pain could be caused .; . . the site or limits of of: define only chiropractor which is statu- condition *7 particular (a) to or establish in a 2. set torily by adjustment. to treat spot position; or hand, complaint the other Patient On A’s posi- (a) out and discover the 3. to seek pain by organic could be a caused an disor- .; tion of . . complaint might His be as consistent der. position (c) to determine the of.” 3. disorder it is with a sub- kidney with Webster, supra, as: by Diagnose is defined simple diagnostic A test of A’s luxation. condition) (as identify a disease or “1. presence the or absence urine to determine distinguishing or character- by symptoms pus chiropractor. blood or will aid the If istics; present, latter condition were that the the causes of or the chiropractor to the that determine would indicate 2. diagnosis.” by A could is no subluxation. Patient nature there physician. be referred to a then Diagnosis defined as: identifying a dis- act of profession has been rec- “1. the art or chiropractic signs symptoms and its its nearly in this Commonwealth for ease from ognized years. At its 1928 session the General fifty general Kentucky It is the rule in that investigation analysis or
2. an
regulations properly
administrative
filed
condition, stipula-
nature or cause of the
the
adopted have
same effect as
stat-
problem.”
or
tion
directly
enacted
utes
General Assem-
pending
While this matter was
bly from which the
agency
administrative
court,
Kentucky
Board of
State
circuit
authority.
Williams,
delegated
Rietze v.
Chiropractic
promulgated
Examiners
an ad-
Ky.,
regula-
amend the measure type designed to objective subjects of knowledge applicants’ KENTUCKY BOARD FOR LICENSING neurolo- pathology, anatomy, physiology, et AID DEALERS HEARING bacteriology, hygiene, histology, gy, al., Appellants, diag- chemistry, chiropractic orthopedics, x-ray and nosis, the use effects al., Appellees. et Louis RALLO principles practices chiropractic chiropractic and col- schools taught Supreme Kentucky. Court of examination portion A of said leges. 22, April 1977. practical demonstration consist shall competency to evaluated clinical by such methods as it board prior the examination.” designate 11; 1976,
(Enact. Acts ch. ch. § 12.) 312.115(2). § shortage critical health care deliv-
The Commonwealth would personnel
ery uti- complete to mandate and full
seem reasonably of all those
lization training experience.
equipped protect is to behind KRS Ch. 333
purpose people health and welfare
Kentucky by requiring laboratories competent reliable and informa- provide professionals. to health KRS 333.010. public and safe- health
The interests citizens of
ty of the this Commonwealth given the
require that which diagnostic use those tools
right reasonably equipped to
they are training and
through experience. view, deny the use my analysis clinical laboratories for urine of would patients blood or their assur- disservice to the
be a professional of the best
ing them chiropractor, and would
available legislative the obvious intent
contradict Assembly. General opinion relegate majority seems to to the mere profession spine.
manipulation position Such archaic, naive, intellectually and without Hancock, Gen., Mary Ann Atty. Ed W. merit. scientific Frankfort, Gen., Atty. Delaney, Asst. foregoing reasons, I
For the dissent. appellants. Blackburn, Jr., W.
Winfrey P. Ralston Louisville, Steenrod, Helman, Carl K. say that LUKOW- I am SKY, J., joins in this appellees. dissent.