. I 

THEATPQ NEY GENERAL 

0~ TEXAS 

Honorable Robert H. Shipman 

President, Texas State Board 

of Examiners in Optometry 

217 Three American Life Bldg. 

San Antonio, Texas 

Opinion No. C-795 

Re: Construction of the 

E 

hrase used in Article 

565d and 4565g, V.C.S. 

"the fitting of contact 

Dear m. Shipman: 

lenses shall be done only 

under the direct supervision of a licensed 

physician or licensed 

optometrist as defined 

by the laws of this 

State." 

We are in receipt of your recent letter requesting an 

opinion concerning the legality of permitting an ophthalmic 

dispenser, who is unlicensed under the law, to fit contact 

lenses under the facts stated in your letter, 

Your letter specifically directs our attention to 

Articles 4552, 4565d and 4565g, Vernon's Civil Statutes, 

and reads in part as follows: 

I, In both Articles 4565d and 45658, 

as a pio%o, appears the requirement that 

the fitting of contact lenses shall be done 

only under the direct supervision of a licensed 

physician or licensed optometrist as defined 

by the laws of this State, In Article 4565d 

there appears as a proviso to the definition 

of optometry contained in Article 4552, a 

phrase stating, In pertinent part, the making 

of any measurement whatsoever Involving the 

eyes or the optical requirements thereof 

constitutes the practice of optometry, 

but permitting to unlicensed persons such 

as ophthalmic dispensers, the measuring 

of interpupillary distances and making 

-3823- 
Honorable Robert H. Shipman, Page 2 (C-795) 

facial measurements in the course of 

dispensing or adapting ophthalmic 

prescriptions in accordance with the 

specific directions of such a prescription, but thereafter setting out 

contact lenses in the quoted proviso 

as a special case. The proviso occupies 

a similar position in Article 4565.g. 

“Owing to the heavy and increasing 

demand for contact lenses on the part of 

the public generally and the Texas public, 

our and your particular concern, the proper 

application, interpretation and enforcement 

of the quoted statutes is becoming a matter 

of great and increasing public interest and 

concern. As you know, our Board is charged 

with responsibility of administering the 

Optometry Act, from which the above quoted 

statutes come, and is charged with the power 

and duty to do so by injunction or other 

appropriate remedy. 

t, 0 . . In connection with the Board’s 

duties, numerous and increasing instances 

have come to our attention in which ophthalmic dispensers have, in connection with 

dispensing more or less complete prescriptions, engaged in measurements of the 

curvature of the cornea, and in other highly 

delicate procedures in fitting contact lenses, 

out of the actual presence of a licensed 

optometrist or physician. In addition, the 

practice seems to be widespread and growing 

whereby a prescription is simply furnished 

a dispenser, and he completes the fitting 

of the contact lens from this point, conducting additional measurements, physically 

fitting the lenses-including inserting them 

in the patient’s eye-instructing the patient 

in insertion and removal of the lenses, and 

allied procedures D ” 

-3824- 
Honorable Robert H. Shipman, Page 3 (C-795) 

Specifically you ask whether activities of &n unlicensed 

ophthalmic dispenser as set out in the following examples are 

lawful: 

"(a) Dr. Jones, a licensed physician or 

optometrist, has his office on the 10th floor 

of the X building. Mr. Smith, an unlicensed 

ophthalmic dispenser, has his office in 

another building some five blocks away. The 

offices have no common ownership and are 

distinct entities. Dr. Jones, after examining 

the patient at his (Jones') office, sends 

him to Mr. Smith, the dispenser, with a written 

prescription signed by Jones for contact lenses 

which contains the refractive correction desired, 

and nothing more. Mr. Smith, at his (Smith's) 

office, thereafter, and over the course of one 

or more visits by the patient, use an ophthalmometer to measure the curvature of the patient's 

cornea, helps the patient select the type and 

color of the lenses, makes several trial insertions and placements of different sized and 

shaped lenses on the eyes of the patient, performs the fluorescein test and the other 

indicated procedures, and advises the patient 

in the matter of inserting the lenses and to 

return to him, Smith, for any corrections; 

in determining the lens initially selected 

Smith observes the physical effect on the 

eye of the various trial lenses and also 

evaluates the subjective statements of the 

patient. During 

in the foregoing 

(Jones') office. 

all the activities described 

sentence Dr. Jones is in his 

the same SituatiOn as in 

only that Smith, at the end 

described measuring and 

fitting processes, and after he has selected 

the lens which seem appropriate to him, directs 

the patient to return not to him, but instead 

to Dr. Jones for Dr, Jones' checking of the 

selection and fit of the lenses, and the 

patient does in fact return to Dr. Jones; Dr. 

Jones requires this "return" visit to him in 

all cases. 

-3825 
1 . 

Honorable Robert H. Shipman, Page 4 (C-795 

(ii) Same situa,tion as in ( i) above 

except Dr. Jones' prescription includes the 

measurements of the curvature of the cornea. 

0') The situation is the same as in 

paragraph (a), except tha,t Smith's office is 

on the floor below th&,t of Dr. Jones, and in 

the same building." 

Article 4565d, Vernon's Civil Statutes, reads: 

"For the purpose of this Act the words 

'and fi~ttin 

& 

lenses or prisms,' as employed 

in Article 552, shall be c,onstrued to include: 

"(1) Prescribing or supplying, directly 

or indirectly, lenses or prisms, by the employment of objective or subjective means or the 

making of any measurements whatsoever involving 

the eyes or the optical requirements thereof; 

provided; however, that nothing in this Act 

shall be construed so as to preven,t an opht.halmic dispenser, who does no,t practice optometry, 

from measuring interpupillary distances or 

from making facial measurements for the purpose 

of dispensing, or adaptingiophthalmic prescriptions or lenses, produ&s and accessories in 

accordance with the specifxc directions of 

a written prescription signed by a licensed 

physician or optometrist; provided, however, 

the fitting of con,tact lenses shall be done 

only under the direct supervision of a 

zrist 

as defined by the laws of this state. 

"(2) The adaption or supplying of 

lenses or prisms to correc,t, relieve or 

remedy any defect or abnormal condition 

of the human eye or to correct, relieve 

or remedy or attempt to correct, relieve 

or remedy the effect of any defect or 

abnormal condition of the human eye. 

-382th 
Honorable Robert H. Shipman, Page 5 (C-795) 

“(3) It shall be construed as a violation of this Act for any person not a 

‘licensed optometrist or a licensed physician 

to do any one thing or act, or any combination 

of things or acts, named or described in this 

article. ” (Emphasis supplied) 

Article 45653, Vernon’s Civil Statutes, in part reads: 

“Nothing in this Act shall be construed 

80 as to prevent an ophthalmic dispenser, who 

does not practice medicine or optometry as 

defined by the laws of this State, from preparing, filling; duplicating, compounding or 

adapting ophthalmic prescriptions, dispensing 

ophthalmic lenses, products and accessories, 

in accordance with the specific directions of 

a prescription written and signed by a licensed 

physician or optometrist; provided, however, 

the fitting of contact lenses shall be done 

ly on icensed 

physician or a licensed optometrist as defined 

b yth e 

supplied) 

While optometrists areexcluded from the Purview of 

the enactment that regulates the practice of medicine, “the 

fitting of contact lenses” was expressly made a qualified 

right and the statutes impose responsibility upon the licensed 

physician or licensed optometrist to superintend this act 

‘directly”. 45 Texc;lur.2d 170-171, Physicians and Other 

Healers, Sec. 32. 

Article 4552, Vernon’s Civil Statutes, defining the 

practice of optometry, and Article 4510, Vernon’s Civil Statutes, 

defining the practice of medicine, are to be read in par1 materia 

gp t;; above mentioned statutes. 53 Tex.Jur.2d 280, Statutes, 

. * 

Article 4552, Vernon’s Civil Statutes, states: 

“The practice of optometry Is defined to 

be the employment of objective or subjective 

means, without the use of drugs, for the purpose of ascertaining and measuring the powers 

-3827- 
Honorable Robert H. Shipman, Page 6 (C-795) 

of vision of the human eye, and fitting lenses 

or prisms to correct or remedy any defect or 

abnormal condition of vision. Nothing herein 

shall be construed to permit optometrists to 

treat the eyes for any defect whatsoever in 

any manner nor to administer nor to prescribe 

any drug cr physical treatment whatsoever, 

unless such optometrist is a regularly licensed 

physician or surgeon under the laws of this 

State. . . .' 

Article 4510, Vernon's Civil Statutes, provides as 

follows: 

It is thus seen that while the ophthalmic dispenser is 

given the right of manufacturing lenses or prisms according to 

"Any person shall be regarded as practicing medicine within the meaning of this law: 

"(1) Who shall publicly profess to be a 

physician or surgeon and shall diagnose, treat. 

or offer to treat, any disease n- '!?"?a+? 

mental or physical, or any physical deformkty 

or injury by any efstem or method, or to effect 

cures thereof: (2) or who shall diagnose, treat 

or offer to treat any d+pepse or disorder, mental or physical or any physical deformity or 

injury by any system or method and to effect 

cures thereof and charge therefor, directly 

or intirectly, money or other compensation; 

. . . 

the specifications prescribed by the licensed physician or 

optometrist, the fitting of the contact lenses on the patient 

must be "directly supervised" by the licensed physician or 

optometrist. This Is but a recognition that improper fitting 

is likely to cause injury to the eyesight and must not be 

performed without the knowledge and skill of a licensed 

practitioner. 

You have referred us in your letter to the statement 

in 17 American Jurisprudence, Proof of Facts, Optometric 

Malpractice, Contact Lenses, Section 23, concerning a method 

or process of prescribing and of fitting contact lenses. A 

member of the Texas State Board of Examiners in Optometry 

-3828- 
Honorable Robert H. Shipman, Page 7 (C-795) 

has also invited our attention to another method or process 

for fitting or prescribing contact lenses which involves 

the extensive use of the ophthalmometer. We do not consider 

the differences in the methodology and prescription to be 

of material significance to the questions before us, since 

In our opinion both procedures constitute the fitting of 

contact lenses as contemplated by Articles 4565d and 4565g. 

An enlightening article, “Complications of Cornea1 

Contact Lenses,” 1963 Insurance Counsel Journal, published 

by International Association of Insurance Counsel, Vcl. 30, 

No. 3, pages 456, 459-460, a reprint with the permission of 

the Southern Medical Journal, August 1962, discusses the 

severe complications often resulting from “improper fitting 

and improper follow-up of the cornea1 contact lenses,” 

which are said to result from “many poorly trained and lmproperly motivated technicians,” 

author, Dr. Thomas S. Edwards: 

and it was concluded by the 

I, 

. . . The more Important complications 

are brought about by nonperfect fitting of 

cornea1 contact lenses. . . .It Is thought 

that the fitting of these contact lenses 

requires that the patient have close supervision and examination by a competent 

‘2 

ophthalmologist in order to pick up these 

complications early and to secure the most 

perfect fit possible ofthe cornea1 contact 

lenses. This is one aspect of medicine. 

s . which cannot be delegated to improperly 

trained and improperly motivated technicians, 

especially the technicians who are ooorlv 

trained and not supervised by any ophtha-hologist at all.” (Emphasis supplied) 

In accordt Archives of Ophth., Vol. 65, 0. 161, 1961, 

by H. F. Al&en, ‘The Contact Lens Gap-Delegation or Default?” 

The authorities are harmonious in holding that the 

taking of any measurements of the cornea or eye, other than 

the mere measurement of interpupillary distances, constitutes 

the practice of optometry and medicine, and requires the 

direct personal supervision of one licensed to practice. 

-3829- 
Honorable Robert H. Shipman, Page 8 (C-795) 

State ex rel Reed v. Kuzirian, 228 Ore. 619, 365 P2d 1046 

(1961) 88 A.L R 2d 1284 holding that the fitting of 

glassed requir;d'professional skill and judgment and judgment and distinguishing "between a nurse, who has professional 

skill in her own right, and an optician who, as far as the 

law is concerned, needs none" l/; Ketring v. Sturges, 372 

S.W.2d 104 (MO. 1963); New Jersey State Board of Optometrists 

v. Reiss, 83 N.J. Super. 4'/, 198 A.2d olb (1964), in which 

it was held as follows: 

'There is a self-evident distinction 

betweenth&mechanics of making conventional 

eyeglasses and their adjustment to the face 

and the fabrication of contact lenses and 

the fitting of them directly to the eyes. 

The latter, unlike the former, involves a 

direct exposure to possible eye injury and 

require professional skill and judgment. 

The character, intensity and severity of 

ocular damage resulting from the improper 

fitting of contact lenses has general 

recognition . . . 

"It is no defense that Reiss possessed 

a doctor's prescription and that his work 

had been pronounced satisfactory by the 

ophthalmologist after a wearing time of 

several weeks. The crucial period requiring 

professional supervision was at the time 

of the adaptation of the lenses, their 

initial adjustments . . 0 ." 

Realizing the danger which inhers in the fitting of 

contact lenses to the eyes, 

the use of the words "direct 

the Legislature intended, by 

supervision", to require that 

a licensed physician or licensed optometrist be actually 

present to control and supervise the details and technique 

J/ This is true in Texas, since nurses are licensed 

while there is no licensing or control of any kind of 

ophthalmic dispensers. 

-38$0- 
. I 

Honorable Robert H. Shipman, Page 9 (C-795) 

of fitting contact lenses. This is the only reasonable 

interpretation of the language used and is full supported 

by the authoriti:s defining these terms. Sec. 6 3 C.J.S. 

and 12A Words and Phrases 352 "Supervision*" 

%?ter's New Il)lternational Dictionary (2d Ed. &4) 

"Supervise 

"DirectA; 

State Ex. Rel Coleman v. Christmann, 6 Ohio Law Abstgact 212 

(Ohio Appeals 1927); Soeder v. State, 14 Ohio Law Abstraof 

212 (Ohio Appeals 1933)s State v. C ollins, 159 N.W. 604 

(Iowa 1916); James v. Dental C ommissioner of Conn., 145 Atl. 

570 (1929). 

We do not think it can be reasonably contended that 

the Legislature intended that the ophthalmic dispenser, in 

the fitting of contact lenses, could act in an independent 

contractor relationship with the licensed practitioner. Such 

a relationship would result In the licensed practitioner 

having no control over the dispenser's manner of doing the 

work and no right to supervise its means, methods or details. 

2 Tex.Jur.2d 439, Agency, Sec. 5; Shannon v. Western 1ndemn~t.x 

co., 257 S.W. 522 (Tex.Comm.App. 1924). Thjs concept is 

necessarily inconsistent with 'direct supervision" by the 

licensed practitioner over the ophthalmic dispenser. In the 

fitting of contact lenses, the relationship between the 

ophthalmic dispenser and the licensed practitioner is analogous 

to the relationship of a nurse to a doctor d&ri?g an a&la1 

operation when performing under this actual supervision and 

control. In such a case, the nurse is no longer an independent 

contractor, but becomes a borrowed servant, whose negligence 

is imputed to the doctor. McConnell v. Williams, 361 Pa. 355, 

65 A.2d 243 ;g;g~;RAder;ol~ 203, 221 Pac. 

143; Sherman v. Hartman, 290 P.2d 

; Hallian ;. Prindle, 62 P.2d 1075, 1077 (1936). 

In each of the instances about which you have inquired, 

the ophthalmic dispenser would be engaged in the process of 

fitting contact lenses. It is our opinion that the ophthalmic 

dispenser may not fit contact lenses in any of these situations 

because he is not acting under the direct supervision of a 

licensed physician or optometrist as contemplated and intended 

by the Legislature. The statutes direct in clear and unambiguous language that the unlicensed dispenser shall performthe 

act of fitting of contact lenses only under the "direct 

supervision" of a licensed physiciairor licensed optometrist. 

The statutes, being in the exercise of the police power of 

the state and for the protection of the public health and 

-3831- 
Honorable Robert H. Shipman, P. 10 (C-795) 

welfare, are mandatory and must be construed strictly in the 

light of the purposes of,thclr enactment. 

Physicians and Surgeons, Section 3(b). 

70 C.J.S. 823-825, 

Since the duty of direct supervision and control requires 

presence, we conclude that the statutorv duty of the licensed 

practitioner is not delegable to the unlicensed dispenser. 

T.herefore, it Is a violation of the statutes in question to 

permit the ophthalmic dispenser to fit the contact lenses 

under the fact situations inquired about. 

-m---v- SUMMARY 

Articles 456~ and 4565g, V.C. S., 

require that the fitting of contact lenses 

be done only under the direct supervision of 

a licensed physician or licensed optometrist. 

Under the facts inquired about, the ophthalmic 

dispenser may not lawfully fit contact lenses. 

WAGGONER CARR 

Attorney General of Texas 

JY!iike* 

Assistant 

KBT:mks 

APPROVED: 

OPINION COMMITTEE 

W. 0. Schultz, Chairman 

Gordon Cass 

James McCoy 

Pat Bailey 

John Reeves 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright