Untitled Texas Attorney General Opinion

The Attorney’ General of Texas
JIM MATTOX Maxh 20. 1986
Attorney General
Supreme Court Building John W. Davis, O.D. Opinion No. JM-454
P. 0. BOX 12549 Chairman
Austin. TX. 78711. 2549 Texas Optometry Board Ret Clarification of HW-499 (1982)
512147525Ql
1300 E. Anderson Lane Use of topical ocular pharmaceutical
Telex 910/874-1367
Telecopier 5121475-0266
Suite C-240 agents by optometrists
Austin, Texas 707,52
714 Jackson, Suite 700 Dear Dr. Davis:
Dallas, TX. 75202-4506
2141742-9944
You have requested reconsideration of Attorney General Opinion
MW-499 (1982) which found unconstitutj~onalsection 3.06(d)(5) of the
4824 Alberta Ave.. Suite 160 Medical Practice Act. This provision authorizes a licensed
El Paso. TX. 799052793 optometrist to administer certain drugs to patients pursuant to a
915/533.3464
standing delegaticn order issued by a physician. On reconsideration
of Attorney General Opinion MW-499, and on consideration of additional
p 1 Texas. Suite 700 authorities, we hue concluded that section 3.06(d)(5) need not be
.,ust~“, TX. 77002-3111 held unconstitutional.
713/2295886
Section 3.06(d)(5) of the Medical Practice Act, article 4495b,
V.T.C.S., deals wLt.h the administration by optometrists of topical
606 Broadway, Suite 312
Lubbock, TX. 794013479
ocular pharmaceutical agents, which are drugs applied to the eye to
80817476239 aid in examining it.
Section 3.06(3:)(S)reads in part:
43OQ N. Tenth, Suite B
McAIlen, TX. 78501-1685
5121882-4547 (d) This Act shall be so construed that:
. . . ,
200 Main Plaza. suite 400
San Antonio. TX. 782052797
512f225-4191
(5) (A) A duly licensed and qualified optme-
trist may administer topical ocular pharmaceutical
agents il the practice of optometry as provided by
An Equal Opportunity/ this sub,iivision. These pharmaceutical agents may
Affirmative Action Employer
not be u?!rdfor therapeutic purposes.
(B) 'Co be entitled to use topical ocular.
pharnace>ltical agents in the practice of
optometrr, an optometrist must possess a valid
standing delegation order that:
(i) :is issued to the optometrist by an area
physi::ianlicensed to practice medicine in this
state; and
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Dr. John W. Davis - Page 2 (JM-454)
(ii) authorizes the use of the pharmaceutical
agents author!.z;ed
by this subdivision.
(C) On request, an optometrist will be issued
a standing delegation order described by Paragraph
(B) of this su~bdivision unless the physician
acting as a reasonable and prudent physician
determines that (denial is within the scope of
sound medical judgment as it pertains to opto-
metry, or that it is not in the public interest,
and the basis fxc denial shall be given to the
requesting optometrist in writing if requested.
It is necessary that the physician have knowledge
of the request1r.g optometrist, and if not, then
same shall be good cause for denial.
(D) A standing delegation order issued under
this subdivision or a representation of the order
will be prom1neni:l.y
displayed in the office of the
optometrist. The board will prescribe the form of
the standing delegation order and the certificate
or representaticln.of the order. The standing
delegation order.,as a minimum, will:
(I) be in wc:lting, dated and signed by the
physician;
(ii) specify the available topical ocular
pharmaceutics:. agents, including but not
limited to topical anesthetics and dilating
agents, to be administered in the office; and
(iii) specify that said agents shall not be
used for therzlpeuticpurposes.
(E) On the complaint of any person or on its
own initiative, xhe board of medical examiners may
cancel a standing delegation order issued under
this section if :.tdetermines that the optometrist
possessing the wcder has violated the standing
delegation order or this section.
(F) Except 8s provided by Paragraph (E) of
this subdivision, a standing delegation order
issued under thi;s subdivision remains valid. as
long as:
(1) the physician who issued the order is a
resident of this state and is liceilsed to
practice medicine in this state;
(ii) no irrc~gularities are found on annual
review; and
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Dr. John W. Davis - Page 3 (JM-454)
(iii) the order is not canceled for good cause
by either par:)'.
(G) A physician who has issued a standing
delegation order in compliance with this sub-
division is immune from liability in connection
with acts performed pursuant to the standing
delegation order so long as he has used prudent
judgment in the issuance or the continuance of the
standing delegation order.
(H) Nothing herein is intended to limit or
expand the practice of optometry as defined by
law. (Emphasis added).
Attorney General Opini~onMW-499 (1982) concluded that subsection
3.06(d)(5) of article 44951,!, V.T.C.S., was unconstitutional because it
authorized physicians to asct as licensing agents for the state but
lacked sufficient statutlzy standards to govern the physician's
discretion. On reexamination, we conclude that section 3.06(d)(5) is
not a licensing provision. Instead, it is comparable to other
provisions of law whereby physicians may authorize non-physicians to
administer certain drugs. See V.T.C.S. art. 4476-14, 992(e), 4(2)
(agents or employees o:i physicians, dentists, podiatrists and
/- veterinarians may possess dangerous drugs); V.T.C.S. art. 4476-15,
§§1.02(9), (24)(A), 3.01(e)(l) (agent or employee of dispenser of
controlled substances may''possess such substances); V.T.C.S. art.
4495b, 53.06(d)(4) (administration of dangerous drugs in Department of
Health programs to prevent or treat certain communicable diseases).
Even prior to the enactment of the present version of the Medical
Practice Act, a physician could delegate medical acts to another
person, without directly supervising his performance. Tatro v. State
of Texas, 516 F. Supp. 968, 976 (N.D. Texas 1981). aff'd 703 F.2d 823
(5th Cir. 1983) modified cn other grounds, 104 S. Ct. 3371 (1984); set
Thompson v. Texas State Biard of Medical Examiners, 570 S.W.2d 123,
129-30 (Tex. Civ. App. -' Tyler 1978, writ ref'd n.r.e.). The
nhvsician had to ascertajn that the nerson urovidina treatment was
adequately qualified to do iso. 516 F. Supp. at 976; &e also Attorney
General Opinion H-1295 (19713).
In our opinion, sectlon 3.06(d)(5) merely authorizes a physician
to delegate certain medd.cal acts. The statute does not give a
physician absolute discretion to issue the order to an optometrist.
The physician must deny a request for a standing order if, "acting 8s
a reasonable and prudent r,hysician"he determines that "sound medical
judgment" or "the public interest" dictates.denial. Thus, a physician
must exercise his judgment in granting or denying a standing order
according to a standard r``semblingthe standard to which he would be
P
held accountable in a mapractice suit. See Rood v. Phillips, 554
S.W.2d 160 (Tex. 1977) (r~laintiffmust establish that physician has
used treatment which a re&onable and prudent physician would not use
@. 2064
Dr. John W. Davis - Page 4 (JM-454)
under similar circumstancc,s). The physician's failure to exercise
prudent judgment in issuir,g or continuing a standing order subjects
him to liability in conne:tion with acts performed pursuant to the
standing order. V.T.C.S. art. 4495b, 53.06(d)(5)(G). Finally, he may
not issue a standing order ,unlesshe has knowledge of the requesting
optometrist. -Id. 13.06(d)(S)(C).
If section 3.06(d)(5) is constitutional and still in effect, you
request an answer to the qc,estionssubmitted by Speaker Clayton in his
request for an Attorney General Opinion dated March 5, 1982. EiS
questions were directed at, determining whether the Board of Medical
Examiners had authority t,> regulate delegations made under section
3.06(d)(S). We have summarized his questions and grouped closely
related questions together.
He first inquired wh@:ther the Board of Medical Examiners might
prescribe only the form ~>f the standing delegation order or also
substantive requirements of delegations made under section 3.06(d)(5).
Section 2.09(a) of the!Medical Practices Act authorizes the board
to make rules, regulations and bylaws not inconsistent with the Act to
regulate the practice of medicine. Section 3.06(d)(5), however, limits
the otherwise broad autho:rity of the Board of Medical Examiners to
regulate the practice of medicine. See V.T.C.S. art. 4495b, 52.09(a);
Attorney General Opinion MW-318 (1981). Its role in implement~g
section 3.06(d)(S) is 1imit:e:d
to prescribing the form of the order and
cancelling it if the optonetrists have violated either the order or
the statutory provision. See 53.06(d)(5)(D), (E). See generally
State v. Jackson, 376 S.W.;,dm (Tex. 1964) (legislature may withdraw
‘from administrative agency a matter otherwise within its reaulatorv
field); Railroad Comm&siba v. Fort Worth and D.C. Railway company;
161 S.W.2d 560 (Tex. Civ.-App. - Austin 1942, writ dism'd w.o.m.)
(board may not enlarge its powers by its own orders).
Section 3.06(d)(5)(D) authorizes the board to "prescribe the form
of the standing delegation csrder." (Emphasis added). Although "fz
is not defined in the act, section 1.03(11) provides that it should
have a meaning consistent %'1,th
common law.
"Form" is generally regarded as the antithesis of "substance."
See, e.g., Wilson v. Wagney, 211 S.W.2d 241 (Tex. Civ. App. - San
Antonio 1948, writ ref'd n.r.e.); Gevurtz v. Myers, 500 P.2d 730 (Ore.
Ct. App. 1972). See also P,pplication of Trico Electric Cooperative,
*, 377 P.2d 309, 315 (Ariz. 1962) (form distinguished from
content).
In our opinion, ltforwnin ~section 3.06(d)(S)(D), denotes struc-
ture and is to bye distinguished from substance. We conclude that the
board may prescribe only t.h.eform and not the substance of standing
delegation orders. Authcrity over the substantive content of a
standing delegation order rests with the individual physician. See
V.T.C.S. art. 4495b. P1.0218); compare, e.g., 53.06(d)(l). Of cour6e,
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Dr. John W. Davis - Page 5 (JM-454)
whether a particular administrative regulation deals with "form" or
"substance" would have to ke determined on a case-by-case basis.
He next asked whether the board might limit the types of topical
optical pharmaceutical agc!c,tsthat could be included in a section
3.06(d)(5) delegation or prevent their administration to patients in a
certain age group.
Sections 3.06(d)(5)(A) and (D) are relevant to this inquiry.
Subsection (A) reads as fol.l,ows:
A duly licensed and qualified optometrist may
administer topical.ocular pharmaceutical agents in
the practice of optometry as provided by this
subdivision. These pharmaceutical agents may not
be used for therapeutic purposes. (Emphasis
added).
Subsection (D) reads in part:
The board will prescribe the form of the standing
delegation order iandthe certificate or represen-
tation of the o,rder. The standing delegation
order, as a mininum, will:
. . . .
(ii) specify the available topical ocular
pharmaceutical agents. including but not limited
to topical anesthetics and dilating agents, to be
xministered in l:heoffice; and
(iii) specify that said agents shall not be
used for therapeutic purposes. (Emphasis added).
Section 3.06(d)(S)(D)(N) explicitly permits physicians to
specify any of the available topical ocular pharmaceutical agents and
the board may not narrow their authority. Of course, individual
physicians may decide to ILimit the pharmaceutical agents named in
orders they issue, since their immunity from liability for acts
performed pursuant to a standing delegation order depends upon their
exercising prudent judgment in issuing or continuing the order. In
addition, no pharmaceutkal agent may be used for "therapeutic
purposes." See Webster's Flew International Dictionary (2d Ed. 1957)
(therapeuticmeans "of or pertaining to the healing art;~ concerned
with remedies for disksell; curative."). Whether a particular agent
can be used only for therzlpeuticpurposes, or whether it is used for
therapeutic purposes in a particular case, are fact questions which
cannot be answered in the ,>pinionprocess.
The board may not impose requirements on standing delegation
orders pertaining to the patient's age. Section 3.06(d)(S)(A)
provides that a
p. 2066
Dr. John W. Davis - Page 6 (JM-454) I
duly licensed and qualified optometrist may
administer topicztlocular pharmaceutical agents in
the practice of optometry as provided by this
subdivision. (Erq~hasisadded).
The statute does not refer to the patient's age. The board may not
substantively limit a physician's authority to issue a standing
delegation order by requir:.ngit to state that the optometrist may not
use a topical ocular pharnlaceuticalagent on a particular age group.
Of course, the issuing physician may so limit the use of the
pharmaceutical agents he nllmesin the order.
He also asked whether the board could require as a prerequisite
to issuing a standing orCer that a doctor have authority to admit
patients to an area hospital..
Section 3.06(d)(5)(B) provides that:
To be entitled to use topical ocular phar-
maceutical agent]!in the practice of optometry, an
optometrist must possess a valid standing delega-
tion order that:
(I) is issued to the optometrist by an area
physician licensed to practice medicine in this
?
state . . . . -sphasis added).
Section 3.06(d)(S)(B)(i) refers to "an area physician" but that
term is not defined in tne statute. The board could, pursuant to
section 2.09(a) of the act.,promulgate valid rules defining an "area
physician." Conceivably, the requirement in question could be among
these criteria. For example, a physician practicing in a distant
locale might be deemed an "area physician" if he is authorized to
admit patients to an "area" hospital: in this context, the use of this
standard would appear to be permissible. On the other hand, if a
physician would be deemed an "area physician" as a matter of law,
i.e., because he lives antI practices in the "area," he could not be
zented from issuing a standing order on the ground that he is not
authorized to admit patieni:sto an area hospital.
He next asked whether the board could adopt a rule requiring the
optometrist to inform the delegating physician of pathological con-
ditions discovered during the optometric exam. The rule in question
is subsection (b)(13) of rules proposed by the Board of Medical
Examiners:
[The standing dcl.egation order shall] set forth
any specialized I:Lrcumstancesunder which a person
performing same :Ls to immediately communicate with
the physician cc~ncerningthe patient's condition
including the requirement of immediate notifica- ?
tion of the detegating physician of signs and
p. 2067
Dr. John W. Davis - Page 7 (JM-454)
symptoms of ocular disease which are vision
threatening or which can permanently affect the
sight of the patient and which require medical or
surgical treatment to include, but not necessarily
be limited to signs and symptoms of the following
diseases or medC:al conditions . . . .
Under section 2.09(a) of the act, the board:
-Y make rules, regulations, and bylaws not
inconsistent wit:;this Act as may be necessary fos
the governing of its own proceedings, the
performance of its duties, the regulation of the
Practice of med!tcine in this state, and the
enforcement of &is Act. (Emphasis added).
The subsection (b)(13), requirement may reasonably be charac-
terized as "necessary for . . . the regulation of the practice of
medicine in this state." We do not we believe the proposed regulation
is inconsistent with any p~rovisionof section 3.06(d)(5), or any other
provision of the act. We therefore conclude that the regulation is
not impermissible per se. Whether it is inconsistent with some
specific statute or a regl:lationof the Texas Optometry Board would
have to be determined on a case-by-case basis.
Our conclusion about the validity of subsection (b)(13) is not
inconsistent with our previous determination that the board may not
impose substantive limitar:tonsupon a physician's authority to issue a
standing delegation order. The proposed regulation does not impose
such a limitation, but merely requires that an optometrist report
certain information to the! physician under whose standing delegation
order he is operating.
Ris last question asserts that a physician who reasonably issues
a section 3.06(d)(5) delegation is immune from liability for the acts
of an optometrist acting within the scope of the delegation. It then
asks whether a physician xsy delegate other tasks to an optometrist
under a traditional standlog order where the physician remains liable
for the acts of the optomexist.
Section 3.06(d)(S)(G) provides that:
A physician who has issued a standing delegation
order in compliance with this subdivision is
immune from lir.bility in connection with acts
performed pursuant to the standing delegation
order so long asihe has used prudent judgment in
the issuance or ,the continuance of the standing
delegation order,
The answer to this qulzstiondepends upon the nature of the "other
task" and other relevant facts, and therefore must be determined on a
p. 2068
Dr. John W. Davis - Page 8 (JM-454)
case by case basis. See V.T.C.S. art. 4552-5.13(d) (employment of
optometrist by physician); Attorney General Opinion W-318 (1081).
however, made some general observations which might prove helpful:
The liability of atphysician for the negligence of
others is detersined bv examinina the urinciules
of agency law. Jpargei v. Worley-Hospital, Inc.,
547 S.W.2d 582 (Isex.1977). The master is liable
for the torts cf his servant cosnnitted in the
course of his tm~ployment. Newspapers, Inc. v.
Love, 380 S.W.2d 582 (Tex. 1964). The master's
vicarious liabili'tv for his emolovee's torts is
based upon his right to control the-details of the
work. Id. The supervising physician need not be
the actual emplo:~erof the sewant in order to be
vicariously liabte for his torts, so long as he
has the.right to control the details of the work.
Sparger v. Worley-Hospital, Inc., supra.
SUMMARY
Section 3.06(d)(5) of article 4495b, V.T.C.S.,
is constitutional. The Board of Medical Examiners
may regulate.on17 the form and not the substance
of a standing delegation order issued to an
optometrist pursuant to section 3.06(d)(S) of
article 4495b. V.T.C.S. The delegating physician
has authority to determine the substance of the
order.
J
Very truly yours
A
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Geneera
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney ;aneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrisn~
Assistant Attorney General
p. 2069