JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12549 

Austin. TX. 78711. 2549 

512147525Ql 

Telex 910/874-1367 

Telecopier 5121475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

2141742-9944 

4824 Alberta Ave.. Suite 160 

El Paso. TX. 799052793 

915/533.3464 

p 1 Texas. Suite 700 

.,ust~“, TX. 77002-3111 

713/2295886 

606 Broadway, Suite 312 

Lubbock, TX. 794013479 

80817476239 

43OQ N. Tenth, Suite B 

McAIlen, TX. 78501-1685 

5121882-4547 

200 Main Plaza. suite 400 

San Antonio. TX. 782052797 

512f225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney’ General of Texas 

Maxh 20. 1986 

John W. Davis, O.D. 

Chairman 

Texas Optometry Board 

1300 E. Anderson Lane 

Suite C-240 

Austin, Texas 707,52 

Dear Dr. Davis: 

Opinion No. JM-454 

Ret Clarification of HW-499 (1982) 

Use of topical ocular pharmaceutical 

agents by optometrists 

You have requested reconsideration of Attorney General Opinion 

MW-499 (1982) which found unconstitutj~onal section 3.06(d)(5) of the 

Medical Practice Act. This provision authorizes a licensed 

optometrist to administer certain drugs to patients pursuant to a 

standing delegaticn order issued by a physician. On reconsideration 

of Attorney General Opinion MW-499, and on consideration of additional 

authorities, we hue concluded that section 3.06(d)(5) need not be 

held unconstitutional. 

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 

ocular pharmaceutical agents, 

aid in examining it. 

which are drugs applied to the eye to 

Section 3.06(3:)(S) reads in part: 

(d) This Act shall be so construed that: 

. . . , 

(5) (A) A duly licensed and qualified optmetrist may administer topical ocular pharmaceutical 

agents il the practice of optometry as provided by 

this sub,iivision. These pharmaceutical agents may 

not be u?!rd for 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::ian licensed 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 optometry, 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 therzlpeutic purposes. 

(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 :.t determines 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 
/- 

P 

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 subdivision 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~on MW-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~~sembling the standard to which he would be 

held accountable in a mapractice suit. See Rood v. Phillips, 554 

S.W.2d 160 (Tex. 1977) (r~laintiff must 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 ,unless he 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,estions submitted 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, ltforwn in ~section 3.06(d)(S)(D), denotes structure and is to bye distinguished from substance. We conclude that the 

board may prescribe only t.h.e form 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,ts that 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 iand the certificate or representation 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:he office; 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 therzlpeutic purposes, or whether it is used for 

therapeutic purposes in a particular case, are fact questions which 

cannot be answered in the ,>pinion process. 

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 topicztl ocular pharmaceutical agents in 

the practice of optometry as provided by this 

subdivision. (Erq~hasis added). 

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:.ng it to state that the optometrist may not 

use a topical ocular pharnlaceutical agent on a particular age group. 

Of course, the issuing physician may so limit the use of the 

pharmaceutical agents he nllmes in 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 pharmaceutical agent]! in the practice of optometry, an 

optometrist must possess a valid standing delegation 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:s to an area hospital. 

He next asked whether the board could adopt a rule requiring the 

optometrist to inform the delegating physician of pathological conditions 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:Lrcumstances under which a person 

performing same :Ls to immediately communicate with 

the physician cc~ncerning the patient's condition 

including the requirement of immediate notification 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 characterized 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~rovision of 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:lation of 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:tons upon 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 asi he has used prudent judgment in 

the issuance or ,the continuance of the standing 

delegation order, 

The answer to this qulzstion depends 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. 

optometrist by physician); 

4552-5.13(d) (employment of 

Attorney General Opinion W-318 (1081). 

however, made some general observations which might prove helpful: 

The liability of at physician 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:~er of 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. 

Very J 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