¶1GEORGE H. HANDY. M.D., State Health Officer
¶2You have asked my opinion relating to an interpretation of sec. 146.02 (1), Stats., which reads as follows:
¶3"The attending physician shall cause every infant born in each hospital or maternity home, prior to its discharge therefrom, to be subjected to a test for phenylketonuria and such other causes of mental retardation under sub. (2) as the department directs."
¶4You note that the so-called PKU test required above cannot be expected to be valid until an infant has been fed cow's milk for at least 24 hours or breast milk for at least 48 hours. You ask if the intent of the law would be fulfilled if the parent and the attending physician enter into an agreement to have the test done as soon as valid results could be expected, but after the infant left the hospital.
¶5I am of the opinion your question should be answered affirmatively. Courts generally apply the principle of construction that a statute should be given an interpretation which permits a reasonable operation. 50 Am. Jur., Statutes, sec. 26. The burden is on the physician to have the test performed as soon as valid results can be expected so that the causes of mental retardation are not irreversible. This is the essence of the thing to be done in terms of the statutory purpose and the material provisions of the statute. 50 Am. Jur., Statutes, sec. 25.
¶6Although the statutory provisions carry no penalty, I regard the statute as being absolutely mandatory in terms of protecting the mental health of the infant involved. Accordingly, failure of a physician to pursue the legislative mandate in this matter may subject such physician to disciplinary action.