MARKWHITE AttorneyGeneral

**1537 MaIn** **St.. sun4** **10 mlla,**  **TX. 76201**  **2w742-3244**

**4524 Alberta**  **AH.. suul** ***183 slP49o.Tx.75a**  **51-**

**505 Sm.dw.7,**  **Sub 312**  **Lubboa 7x.** **73al m&747-3232**  

# The Attorney General ofTexas

November 21, 1980

John W.Davis, O.D. Chairman, Texes Optometry Board 5555 North Lamar Austin, Texas 78751 Dear Dr. Davis: Opinion No. M-275 Re: Authority of an optician to fit contact lenses

You ssk several questions about section 5.17of the Texas Optometry Act which reads inpertinent pert:

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 aphysician to aid or mtnister to the needs ofhis patients accordirg to the physician% specific directions, instructions cr prescriptions; and whsre such directions, instructions, or prescriptions are to be followed, performed, or filled outside cr away from the physician’s office such directions, instructions, or prescriptions shall beinwritirg V.T.C.S. art. 4552-5.17. Your questions concern the fitting ofcontact lenses .underaphysician’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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patient with eppropriate instructions for the care and handling of the lenses, and may make mechanical adjustment ofthe 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 mustinclude: radius and width of all curves prescribed, lens diameter, optical zone diameter, lens power, and lens color. ~Youhsve provided a list of acts numbered (a) through (1)which constitute fitting contact lenses within the meaning ofsection LO2(3)(a). Wewill not reproduce the list at length, since the acts are technical in Mture and since your questions do not require usto make distinctions between the various acts. Youfirst ask whether section 5.17authorizes aphysician to direct an optician whois outside ofthe physician’s office toperform the acts ofmeasurement and evaluation which you list. In the alternative, you ask whether the physician may delegate authority to perform such acts only topersons authorized to perform them bysection LO2ofthe Texas Optometry Act. The practice of medicine includes the practice ofoptometry. See Baker v. State 240S.W.924 (Tex. Crim. App. 1921). Thus, alicensed physician has au%%- f.It contact lenses. He may delegate hisauthority to another person aslong asheprovides 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 aslcng es heprovides 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 alicensed 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 5.17authorixes a physician to delegate the fitting of contact lenses to aperson not covered bysection 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. Younext ask whether the authorization must bedirected to aparticular optician, or whether it may be ablanket authorization to any optician ofthe 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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You next ask whether the authorization maybe limited to a particular patient, cr whether it may be a %lenkeF authorization applicable to future patients ofthe physician who are cleared for contact lenses. Section 5.17clearly 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 ‘ofpatients, 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. Wefind no legal difference between this procedure and one wherein the physician uses multiple copies ofthe 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” ofthe 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 beunder “control, supervision, or direction.” The only distinction made with respect to a person who performs away from the office is that the directions, instructions, orprescriptions must be inwriting. 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 5.17clearly 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 (1975)(specific nottce under Open Meetings Act). Cf Attorney General Opinion H-662

Younext ask whether the authorization from the physician must be directed only at an individual optician or whether it may be given to acorporation orpartnership. Section 5.17reco&es that aphysic&n may delegate medical tasks to others, consistent with hi licensiq stat.ute. Cf. Thompson v. Texas State Board of Medical Examiners, 570S.W.2d 123 (Tex. Civ. AK - Tyl l678 writ rePd 1 (physichum may not d&gate performance of acupuncture Zother& Webeliev$Zwever, that it permits delegation of medical tasks only to natural persons, since only natural persons can be s&+ct to the control orsupervision ofthe 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 beaddressed to the person whoactually does the work. Ycu next ask whether the physician is legally liable for the negligence of the opticim inperform@ the acts of measurement and evaluation which you describe. The liability of aphysician fornegligence of someone whoesaists him end whoisemployed 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

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liability of a surgeon for the negligence of 8n operating mom mnse employed by the hospitaL & The essential inquiry there was whether the surgeon lwdthe 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 *doesso 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 beliable forhisown negligence.
You finally ask whether an optician who MSnot been authorized by a physician to perform the actions yar list isliable for his ownnegligence inperforming them. One who negligently fits contact lenses is liable for the damsge caused b his negligence. Cf.

425S.W.2d342 (Tex. 1968)(negligence infitting contact ,lenses dids

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 ofnegligence.

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E GRAYIII Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General

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APPROVED: OPINION CGMMDTEE SusanL.Garrison, Acting Chairman Jon Bible Carla Cox Rick Gilpin C. Robert Heath

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