 .    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


                              -3823-
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 Atl.
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 Pac.
                                        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

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