MARK WHITE 

Attorney General 

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 of Texas 

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 5.17 of the Texas Optometry 

Act which reads in pertinent 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 a physician to aid or mtnister to the needs of his 

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 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 

(1975) (specific nottce under Open Meetings Act). 

Cf Attorney General Opinion H-662 

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