Untitled Texas Attorney General Opinion ( 1966 )

. I
THEATPQ NEY GENERAL
0~ TEXAS
Honorable Robert H. Shipman Opinion No. C-795
President, Texas State Board
of Examiners in Optometry Re: Construction of the
217 Three American Life Bldg. hrase used in Article
San Antonio, Texas E565d and 4565g, V.C.S.
"the fitting of contact
lenses shall be done only
under the direct super-
vision of a licensed
physician or licensed
optometrist as defined
by the laws of this
State."
Dear m. Shipman:
We are in receipt of your recent letter requesting an
opinion concerning the legality of permitting an ophthalmic
dispenser, who is unlicensed under the law, to fit contact
lenses under the facts stated in your letter,
Your letter specifically directs our attention to
Articles 4552, 4565d and 4565g, Vernon's Civil Statutes,
and reads in part as follows:
I, In both Articles 4565d and 45658,
as a pio%o, appears the requirement that
the fitting of contact lenses shall be done
only under the direct supervision of a licensed
physician or licensed optometrist as defined
by the laws of this State, In Article 4565d
there appears as a proviso to the definition
of optometry contained in Article 4552, a
phrase stating, In pertinent part, the making
of any measurement whatsoever Involving the
eyes or the optical requirements thereof
constitutes the practice of optometry,
but permitting to unlicensed persons such
as ophthalmic dispensers, the measuring
of interpupillary distances and making
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Honorable Robert H. Shipman, Page 2 (C-795)
facial measurements in the course of
dispensing or adapting ophthalmic
prescriptions in accordance with the
specific directions of such a pre-
scription, but thereafter setting out
contact lenses in the quoted proviso
as a special case. The proviso occupies
a similar position in Article 4565.g.
“Owing to the heavy and increasing
demand for contact lenses on the part of
the public generally and the Texas public,
our and your particular concern, the proper
application, interpretation and enforcement
of the quoted statutes is becoming a matter
of great and increasing public interest and
concern. As you know, our Board is charged
with responsibility of administering the
Optometry Act, from which the above quoted
statutes come, and is charged with the power
and duty to do so by injunction or other
appropriate remedy.
t,0 . . In connection with the Board’s
duties, numerous and increasing instances
have come to our attention in which ophthal-
mic dispensers have, in connection with
dispensing more or less complete prescrip-
tions, engaged in measurements of the
curvature of the cornea, and in other highly
delicate procedures in fitting contact lenses,
out of the actual presence of a licensed
optometrist or physician. In addition, the
practice seems to be widespread and growing
whereby a prescription is simply furnished
a dispenser, and he completes the fitting
of the contact lens from this point, con-
ducting additional measurements, physically
fitting the lenses-including inserting them
in the patient’s eye-instructing the patient
in insertion and removal of the lenses, and
allied procedures D”
-3824-
Honorable Robert H. Shipman, Page 3 (C-795)
Specifically you ask whether activities of &n unlicensed
ophthalmic dispenser as set out in the following examples are
lawful:
"(a) Dr. Jones, a licensed physician or
optometrist, has his office on the 10th floor
of the X building. Mr. Smith, an unlicensed
ophthalmic dispenser, has his office in
another building some five blocks away. The
offices have no common ownership and are
distinct entities. Dr. Jones, after examining
the patient at his (Jones') office, sends
him to Mr. Smith, the dispenser, with a written
prescription signed by Jones for contact lenses
which contains the refractive correction desired,
and nothing more. Mr. Smith, at his (Smith's)
office, thereafter, and over the course of one
or more visits by the patient, use an ophthal-
mometer to measure the curvature of the patient's
cornea, helps the patient select the type and
color of the lenses, makes several trial inser-
tions and placements of different sized and
shaped lenses on the eyes of the patient, per-
forms the fluorescein test and the other
indicated procedures, and advises the patient
in the matter of inserting the lenses and to
return to him, Smith, for any corrections;
in determining the lens initially selected
Smith observes the physical effect on the
eye of the various trial lenses and also
evaluates the subjective statements of the
patient. During all the activities described
in the foregoing sentence Dr. Jones is in his
(Jones') office.
the same SituatiOn as in
only that Smith, at the end
described measuring and
fitting processes, and after he has selected
the lens which seem appropriate to him, directs
the patient to return not to him, but instead
to Dr. Jones for Dr, Jones' checking of the
selection and fit of the lenses, and the
patient does in fact return to Dr. Jones; Dr.
Jones requires this "return" visit to him in
all cases.
-3825
1 .
Honorable Robert H. Shipman, Page 4 (C-795
(ii) Same situa,tionas in (i) above
except Dr. Jones' prescription includes the
measurements of the curvature of the cornea.
0') The situation is the same as in
paragraph (a), except tha,tSmith's office is
on the floor below th&,tof Dr. Jones, and in
the same building."
Article 4565d, Vernon's Civil Statutes, reads:
"For the purpose of this Act the words
'and fi~ttin lenses or prisms,' as employed
in Article &552, shall be c,onstruedto include:
"(1) Prescribing or supplying, directly
or indirectly, lenses or prisms, by the employ-
ment of objective or subjective means or the
making of any measurements whatsoever involving
the eyes or the optical requirements thereof;
provided; however, that nothing in this Act
shall be construed so as to preven,tan opht.hal-
mic dispenser, who does no,tpractice optometry,
from measuring interpupillary distances or
from making facial measurements for the purpose
of dispensing, or adaptingiophthalmic prescrip-
tions or lenses, produ&s and accessories in
accordance with the specifxc directions of
a written prescription signed by a licensed
physician or optometrist; provided, however,
the fitting of con,tactlenses shall be done
only under the direct supervision of a
zrist
as defined by the laws of this state.
"(2) The adaption or supplying of
lenses or prisms to correc,t,relieve or
remedy any defect or abnormal condition
of the human eye or to correct, relieve
or remedy or attempt to correct, relieve
or remedy the effect of any defect or
abnormal condition of the human eye.
-382th
Honorable Robert H. Shipman, Page 5 (C-795)
“(3) It shall be construed as a vio-
lation of this Act for any person not a
‘licensed optometrist or a licensed physician
to do any one thing or act, or any combination
of things or acts, named or described in this
article. ” (Emphasis supplied)
Article 45653, Vernon’s Civil Statutes, in part reads:
“Nothing in this Act shall be construed
80 as to prevent an ophthalmic dispenser, who
does not practice medicine or optometry as
defined by the laws of this State, from pre-
paring, filling; duplicating, compounding or
adapting ophthalmic prescriptions, dispensing
ophthalmic lenses, products and accessories,
in accordance with the specific directions of
a prescription written and signed by a licensed
physician or optometrist; provided, however,
the fitting of contact lenses shall be done
ly
on icensed
physician or a licensed optometrist as defined
byth e
supplied)
While optometrists areexcluded from the Purview of
the enactment that regulates the practice of medicine, “the
fitting of contact lenses” was expressly made a qualified
right and the statutes impose responsibility upon the licensed
physician or licensed optometrist to superintend this act
‘directly”. 45 Texc;lur.2d 170-171, Physicians and Other
Healers, Sec. 32.
Article 4552, Vernon’s Civil Statutes, defining the
practice of optometry, and Article 4510, Vernon’s Civil Statutes,
defining the practice of medicine, are to be read in par1 materia
gp t;; above mentioned statutes. 53 Tex.Jur.2d 280, Statutes,
. *
Article 4552, Vernon’s Civil Statutes, states:
“The practice of optometry Is defined to
be the employment of objective or subjective
means, without the use of drugs, for the pur-
pose of ascertaining and measuring the powers
-3827-
Honorable Robert H. Shipman, Page 6 (C-795)
of vision of the human eye, and fitting lenses
or prisms to correct or remedy any defect or
abnormal condition of vision. Nothing herein
shall be construed to permit optometrists to
treat the eyes for any defect whatsoever in
any manner nor to administer nor to prescribe
any drug cr physical treatment whatsoever,
unless such optometrist is a regularly licensed
physician or surgeon under the laws of this
State. . . .'
Article 4510, Vernon's Civil Statutes, provides as
follows:
"Any person shall be regarded as prac-
ticing medicine within the meaning of this law:
"(1) Who shall publicly profess to be a
physician or surgeon and shall diagnose, treat.
or offer to treat, any disease n- '!?"?a+?
mental or physical, or any physical deformkty
or injury by any efstem or method, or to effect
cures thereof: (2) or who shall diagnose, treat
or offer to treat any d+pepse or disorder, men-
tal or physical or any physical deformity or
injury by any system or method and to effect
cures thereof and charge therefor, directly
or intirectly, money or other compensation;
. . .
It is thus seen that while the ophthalmic dispenser is
given the right of manufacturing lenses or prisms according to
the specifications prescribed by the licensed physician or
optometrist, the fitting of the contact lenses on the patient
must be "directly supervised" by the licensed physician or
optometrist. This Is but a recognition that improper fitting
is likely to cause injury to the eyesight and must not be
performed without the knowledge and skill of a licensed
practitioner.
You have referred us in your letter to the statement
in 17 American Jurisprudence, Proof of Facts, Optometric
Malpractice, Contact Lenses, Section 23, concerning a method
or process of prescribing and of fitting contact lenses. A
member of the Texas State Board of Examiners in Optometry
-3828-
Honorable Robert H. Shipman, Page 7 (C-795)
has also invited our attention to another method or process
for fitting or prescribing contact lenses which involves
the extensive use of the ophthalmometer. We do not consider
the differences in the methodology and prescription to be
of material significance to the questions before us, since
In our opinion both procedures constitute the fitting of
contact lenses as contemplated by Articles 4565d and 4565g.
An enlightening article, “Complications of Cornea1
Contact Lenses,” 1963 Insurance Counsel Journal, published
by International Association of Insurance Counsel, Vcl. 30,
No. 3, pages 456, 459-460, a reprint with the permission of
the Southern Medical Journal, August 1962, discusses the
severe complications often resulting from “improper fitting
and improper follow-up of the cornea1 contact lenses,”
which are said to result from “many poorly trained and lmpro-
perly motivated technicians,” and it was concluded by the
author, Dr. Thomas S. Edwards:
I,. . . The more Important complications
are brought about by nonperfect fitting of
cornea1 contact lenses. . . .It Is thought
that the fitting of these contact lenses
requires that the patient have close super- ‘2
vision and examination by a competent
ophthalmologist in order to pick up these
complications early and to secure the most
perfect fit possible ofthe cornea1 contact
lenses. This is one aspect of medicine.
s . which cannot be delegated to improperly
trained and improperly motivated technicians,
especially the technicians who are ooorlv
trained and not supervised by any ophtha-holo-
gist at all.” (Emphasis supplied)
In accordt Archives of Ophth., Vol. 65, 0. 161, 1961,
by H. F. Al&en, ‘The Contact Lens Gap-Delegation or Default?”
The authorities are harmonious in holding that the
taking of any measurements of the cornea or eye, other than
the mere measurement of interpupillary distances, constitutes
the practice of optometry and medicine, and requires the
direct personal supervision of one licensed to practice.
-3829-
Honorable Robert H. Shipman, Page 8 (C-795)
State ex rel Reed v. Kuzirian, 228 Ore. 619, 365 P2d 1046
(1961) 88 A.L R 2d 1284 holding that the fitting of
glassed requir;d'professional skill and judgment and judg-
ment and distinguishing "between a nurse, who has professional
skill in her own right, and an optician who, as far as the
law is concerned, needs none" l/; Ketring v. Sturges, 372
S.W.2d 104 (MO. 1963); New Jersey State Board of Optometrists
v. Reiss, 83 N.J. Super. 4'/, 198 A.2d olb (1964), in which
it was held as follows:
'There is a self-evident distinction
betweenth&mechanics of making conventional
eyeglasses and their adjustment to the face
and the fabrication of contact lenses and
the fitting of them directly to the eyes.
The latter, unlike the former, involves a
direct exposure to possible eye injury and
require professional skill and judgment.
The character, intensity and severity of
ocular damage resulting from the improper
fitting of contact lenses has general
recognition . . .
"It is no defense that Reiss possessed
a doctor's prescription and that his work
had been pronounced satisfactory by the
ophthalmologist after a wearing time of
several weeks. The crucial period requiring
professional supervision was at the time
of the adaptation of the lenses, their
initial adjustments . . 0 ."
Realizing the danger which inhers in the fitting of
contact lenses to the eyes, the Legislature intended, by
the use of the words "direct supervision", to require that
a licensed physician or licensed optometrist be actually
present to control and supervise the details and technique
J/ This is true in Texas, since nurses are licensed
while there is no licensing or control of any kind of
ophthalmic dispensers.
-38$0-
. I
Honorable Robert H. Shipman, Page 9 (C-795)
of fitting contact lenses. This is the only reasonable
interpretation of the language used and is full supported
by the authoriti:s defining these terms. Sec. 6 3 C.J.S.
"Supervise and 12A Words and Phrases 352 "Supervision*"
%?ter's New Il)lternational Dictionary (2d Ed. &4) "DirectA;
State Ex. Rel Coleman v. Christmann, 6 Ohio Law Abstgact 212
(Ohio Appeals 1927); Soeder v. State, 14 Ohio Law Abstraof
212 (Ohio Appeals 1933)s State v. Collins, 159 N.W. 604
(Iowa 1916); James v. Dental Commissioner of Conn., 145 A.
570 (1929).
We do not think it can be reasonably contended that
the Legislature intended that the ophthalmic dispenser, in
the fitting of contact lenses, could act in an independent
contractor relationship with the licensed practitioner. Such
a relationship would result In the licensed practitioner
having no control over the dispenser's manner of doing the
work and no right to supervise its means, methods or details.
2 Tex.Jur.2d 439, Agency, Sec. 5; Shannon v. Western 1ndemn~t.x
co., 257 S.W. 522 (Tex.Comm.App. 1924). Thjs concept is
necessarily inconsistent with 'direct supervision" by the
licensed practitioner over the ophthalmic dispenser. In the
fitting of contact lenses, the relationship between the
ophthalmic dispenser and the licensed practitioner is analogous
to the relationship of a nurse to a doctor d&ri?g an a&la1
operation when performing under this actual supervision and
control. In such a case, the nurse is no longer an independent
contractor, but becomes a borrowed servant, whose negligence
is imputed to the doctor. McConnell v. Williams, 361 Pa. 355,
65 A.2d 243 ;g;g~;RAder;ol~ 203, 221 P.
143; Sherman v. Hartman, 290 P.2d
; Hallian ;. Prindle, 62 P.2d 1075, 1077 (1936).
In each of the instances about which you have inquired,
the ophthalmic dispenser would be engaged in the process of
fitting contact lenses. It is our opinion that the ophthalmic
dispenser may not fit contact lenses in any of these situations
because he is not acting under the direct supervision of a
licensed physician or optometrist as contemplated and intended
by the Legislature. The statutes direct in clear and unambigu-
ous language that the unlicensed dispenser shall performthe
act of fitting of contact lenses only under the "direct
supervision" of a licensed physiciairor licensed optometrist.
The statutes, being in the exercise of the police power of
the state and for the protection of the public health and
-3831-
Honorable Robert H. Shipman, P. 10 (C-795)
welfare, are mandatory and must be construed strictly in the
light of the purposes of,thclr enactment. 70 C.J.S. 823-825,
Physicians and Surgeons, Section 3(b).
Since the duty of direct supervision and control requires
presence, we conclude that the statutorv duty of the licensed
practitioner is not delegable to the unlicensed dispenser.
T.herefore, it Is a violation of the statutes in question to
permit the ophthalmic dispenser to fit the contact lenses
under the fact situations inquired about.
SUMMARY
-m---v-
Articles 456~ and 4565g, V.C. S.,
require that the fitting of contact lenses
be done only under the direct supervision of
a licensed physician or licensed optometrist.
Under the facts inquired about, the ophthalmic
dispenser may not lawfully fit contact lenses.
WAGGONER CARR
Attorney General of Texas
JY!iike*
Assistant
KBT:mks
APPROVED:
OPINION COMMITTEE
W. 0. Schultz, Chairman
Gordon Cass
James McCoy
Pat Bailey
John Reeves
APPROVEDFOR THE ATTORNEYGENERAL
BY: T. B. Wright