                                The Attorney               General         of Texas

MARK WHITE                                         November 21, 1980
Attorney General


                            John W. Davis, O.D.                        Opinion No. M-275
                            Chairman, Texes Optometry     Board
                            5555 North Lamar                           Re: Authority of an optician        to
                            Austin, Texas 78751                        fit contact lenses
1537MaIn St.. sun4 10
mlla, TX. 76201             Dear Dr. Davis:
2w742-3244

                                 You ssk several questions about section 5.17 of the Texas Optometry
4524AlbertaAH.. suul* 183
                            Act which reads in pertinent pert:
slP49o.Tx.75a
51-                                     Nothw in this Act shall prevent, limit, or interfere
                                        with the right of a physician duly licensed by the
                                        Texas State Board of Medical Examiners to treat or
                                        presaibe    for his patients or to direct cc instruct
                                        others under the control, supervision, or direction of
                                        such a physician to aid or mtnister to the needs of his
                                        patients    accordirg    to the physician%      specific
505 Sm.dw.7, Sub 312
Lubboa 7x. 73al
                                        directions, instructions cr prescriptions; and whsre
m&747-3232                              such directions, instructions, or prescriptions are to
                                        be followed, performed, or filled outside cr away
                                        from the physician’s office such directions, instruc-
                                        tions, or prescriptions shall be in writirg

                            V.T.C.S. art. 4552-5.17.

                                    Your questions concern the fitting of contact lenses .under a physician’s
                            direction pursuant to this provision.      Article 4552-1.02, which defines the
                            epractice of optometry,” makes the following proviso with respeot to fitting
                            contact lenses:

                                        provided, however, the fitting of contact lenses shall
                                        be done only ty a licensed physician or licensed
                                        optometrist as defined by the laws of this state, but
                                        the lenses may be dispensed by en wthalmic
                                        dispenser on a fully written contact lens prescription
                                        issued by a licensed physicien or optometrist,         in
                                        which case the opthalmic dispenser may fabricate or
                                        order the contact lenses and dispense them to the




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’ John W. Davis, O.D. - Page Two




              patient with eppropriate instructions for the care and handling of
              the lenses, and may make mechanical adjustment of the lenses, but
              shall make no measurements of the eye or the cornea or evaluate
              the physical fit of the lenses, by any means whatsoever; provided
              that the physician or optometrist        who writes or issues the
              prescription shall remain professionally Responsible tothe patient.

  V.T.C.S. art. 4552-1.02(3)(A).

         You have provided us with the Optometry Board’s definition of a “fully written”
  contact lens prescription within the meaning of section LO2(3Ka). It must include: radius
  and width of all curves prescribed, lens diameter, optical zone diameter, lens power, and
  lens color. ~You hsve provided a list of acts numbered (a) through (1) which constitute
  fitting contact lenses within the meaning of section LO2(3)(a). We will not reproduce the
  list at length, since the acts are technical in Mture and since your questions do not
  require us to make distinctions between the various acts.

          You first ask whether section 5.17 authorizes a physician to direct an optician who is
  outside of the physician’s office to perform the acts of measurement and evaluation which
  you list. In the alternative,       you ask whether the physician may delegate authority to
  perform such acts only to persons authorized to perform them by section LO2 of the Texas
  Optometry Act. The practice of medicine includes the practice of optometry. See Baker
  v. State 240 S.W. 924 (Tex. Crim. App. 1921). Thus, a licensed physician has au%%-
  f.It contact lenses. He may delegate his authority to another person as long as he provides
  adequate control and slqervision.           See Thompson v. Texas State Board of Medical
  Examiners. 570 S.W.2d 123 (Tex. Civxpp.             - Tyler 1978, writ repd nr.e.); Attorney
  General Opinions H-395 (1974); H-27 (1973). We believe a physiciati may delegate the
  fitting of contact lenses to another person as lcng es he provides instruction, control, and
  supervision commensurate         with that person’s qualifications. Article 4552-5.17, V.T.C.S.,
  states that mothing       in this Act” shall prevent a licensed physician from directing others
   to minister to the needs of his patients, and we believe this language means that the
  limitation    in section LO2(3)(a) is not applicable to work done at the direction of a
  physician.     In our opinion, section 5.17 authorixes a physician to delegate the fitting of
   contact lenses to a person not covered by section L02, htcluditg an optician.

         You next ask eight specific questions regard*      the authorization   which the
  physician directs to the optician.   You fit  ask whether the authorization   must be in
  writig.   Section 5.17 clearly states that it must be, where the instructions are to be
  followed away from the physiciank office.

         You next ask whether the authorization must be directed to a particular optician, or
  whether it may be a blanket authorization to any optician of the patif!nt’s choice. Where a
  physician delegates a medical task to another person, hs must provide adequate
  instruction consistent with that persons sldll and knowledge.        See Attorney General
  Opinion Ii-1295 0978). Since opticians are not licensed in Texas-           CtIMOt rely 01 a
  particuler level of ability in the profession. Therefore, we believe the physician should
  address the authorization   to a particular optician or opticians, and provide instructions
  which are appropriate to that person’s ability.




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John W. Davis, O.D. - Pege Three




       You next ask whether the authorization may be limited to a particular patient, cr
whether it may be a %lenkeF      authorization applicable to future patients of the physician
who are cleared for contact lenses. Section 5.17 clearly requires written instructions fcr
each patient.     Since indivi&al patients may require different types of services, it is
unclear how workable a blenket authorization         would be. However, whsre the same
specific instructions ere @icable       to a group ‘of patients, we believe the doctor may
direct in writing that a perticuler patient be given the services described in directions
already given to the optician by the physician. We find no legal difference between this
procedure and one wherein the physician uses multiple copies of the same ~h&uctions and
adds the patient’s name to it.

       You next ask whether the optician must be mder the “control, srpervisicn, or
direction” of the physician in the performance of such authorized acts. It is clear from
the language of the statute that my person who treats a patient at a physician’s
instruction must be under “control, supervision, or direction.” The only distinction made
with respect to a person who performs away from the office is that the directions,
instructions, or prescriptions must be in writing.

       We will combine your next two questions fcr convenience in enswering.         You ask
whether the optician ‘must receive “specific”    directions from the physician and whether
the phrases “OK for contacts” or “Take ell necessary steps for contacts” satisfy the
requirement for specific directions. Section 5.17 clearly states that persons ministering to
the needs of a physician’s patients must & so accord*            to his %pecific directions,
instructions, or prescriptions,” which, of course, must be in writiw where the work is
performed away from the physician’s office. The psrticular phrases you inquire about do
not, in our opinion, constitute specific directions. L  Cf Attorney General Opinion H-662
(1975) (specific nottce under Open Meetings Act).

       You next ask whether the authorization from the physician must be directed only at
an individual optician or whether it may be given to a corporation or partnership. Section
5.17 reco&es     that a physic&n may delegate medical tasks to others, consistent with hi
licensiq stat.ute. Cf. Thompson v. Texas State Board of Medical Examiners, 570 S.W.2d
123 (Tex. Civ. AK        - Tyl     l678 writ rePd         1 (physichum may not d&gate
performance of acupuncture Zother&          We believ$Zwever,     that it permits delegation
of medical tasks only to natural persons, since only natural persons can be s&+ct to the
control or supervision of the physician.

       You next ask whether a physician may       authorize an opticiw to delegate to others
the r@ht to perform the list of acts in fittirg   contact lenses which ycu have provided. In
our opinion, section 5.17 does not permit a       &delegation   of medical tasks. Thug the
authorization must be addressed to the person     who actually does the work.

         Ycu next ask whether the physician is legally liable for the negligence of the
opticim in perform@ the acts of measurement and evaluation which you describe. The
liability of a physician for negligence of someone who esaists him end who is employed by
a third party depends upon principles of agency law. SDarger v. Worley Hospital, Inc., 547
S.WJd 582 (Tex. 1977). The borrowed servant doctrine has been applied to ,&termine the


                                                                                i




                                             p. an
                                                                                               .    _.   .




.   John W. Davis, O.D. - Psge Four




    liability of a surgeon for the negligence of 8n operating mom mnse employed by the
    hospitaL & The essential inquiry there was whether the surgeon lwd the right to control
    the &tails of the specific act raising the issue of liability.    The right of control is
    ordimrily a question of fact       16    However, in the case of persons acting tmder a
    physiciar’s direction pursuant ,to section 5.17, we believe the physician hs a right to
    control the performance, whether he *does so cr not in a particular case. Hence, we
    believe a physicien would be liable for the negligence of an opticien acting tmder his
    directions pursuant to section 5.17. Of course, the optician may also be liable for his own
    negligence.

           You finally ask whether an optician who MS not been authorized by a physician to
    perform the actions yar list is liable for his own negligence in performing them. One who
    negligently fits contact lenses is liable for the damsge caused b his negligence.         Cf.
                        425 S.W.2d 342 (Tex. 1968) (negligence in fitting contact ,lenses did s


                                           SUMMARY

                   Article 4552-5.17, V.T.C.S., authorizes a physicim to direct en
               optician cutsids of hk office to perform acts necessary to fit
               contact    lenses.  The physician must uss a specific written
               authorization to direct the opt&en’s work. The physician remains
               legally liable for the negligence of the optician in performing
               services tmder hi direction. An optician, aotirg v&h or without a
               physicianC authorization,   is liable for damage caused by his own
               acts of negligence.




                                                     MARK      WHITE
                                                     Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    RICHARD E GRAY III
    Executive Assistant Attorney General

    Prepared by Susan Garrison
    Assistant Attorney General




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-   -       John W. Davis, O.D. - Pnge Five




            APPROVED:
            OPINION CGMMDTEE

            Susan L. Garrison, Acting Chairman
            Jon Bible
            Carla Cox
            Rick Gilpin
            C. Robert Heath




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