Untitled Texas Attorney General Opinion ( 1980 )

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
p. 875
’ 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.
p. 876
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
p. 878
. .
- - John W. Davis, O.D. - Pnge Five
APPROVED:
OPINION CGMMDTEE
Susan L. Garrison, Acting Chairman
Jon Bible
Carla Cox
Rick Gilpin
C. Robert Heath
p. a79