                                  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


                                                                    p. 2062
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

                                 p. 2063
     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,



                                 p. 2065
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
