Mr. KоHN. That is right.

Mr. GRIDER. And does not the optician then furnish the lenses to the patient?

Mr. KOHN. No, sir; not in the case of the optometrist. The optometrist furnishes what we are pleased to call a complete and unified service. He does the whole job. He first examines the eye and then he writes the prescription, and then he sends the prescription to a laboratory, an ophthalmic laboratory, has the prescription come back, makes the necessary tests as to its correctness, and then he fits and adjusts the glasses to the patient's face the way he feels professionally it should be done. Now, on the other hand, there are some very few optometrists who do write prescriptions and then tell the patient, "Get them filled by whatever optician you wish." dentally, that is the practice of most of the physicians, or was. Until recently, we have learned by survey that, as of now, 35 percent of the ophthalmologists furnish their own glasses, too. It would seem they have evidently seen the advantage of a unified practice, and are doing this.

Inci

Mr. GRIDER. The patient has no freedom of choice in the selection of the laboratory.

Mr. KоHN. Oh, yes; if he tells the optometrist, "I'd like to take my prescription and have it made some place else," he is given it, the same as you would get a prescription for drugs.

Mr. GRIDER. But then, the laboratory has to return it to the optometrist, who has to fit it.

Mr. KOHN. No. In that instance, the patient would not take it to a laboratory, which is in the nature of a wholesale establishment, a manufacturing plant. He would take it to a local optician who would send it to a laboratory, get it back, and then fit the glasses.

Mr. GRIDER. Is there any prohibition in this act against ownership of the laboratory, the grinding outfit, or financial interest by the optometrist in the laboratory?

Mr. KоHN. No sir.

Mr. GRIDER. He could own his own laboratory, if he chose.

Mr. KOHN. Oh, if he wished to have his own laboratory in his place he could, and that used to be the practice.

Mr. GRIDER. Now, you stated a moment ago, I believe, that under this act it would be lawful for the drugstore to sell sunglasses. Mr. KOHN. Yes sir.

Mr. GRIDER. Well, now this definition of furnishing would prohibit that; wouldn't it? Wouldn't that be the practice of optometry? Mr. KOHN. I wouldn't say so.

Mr. GRIDER. The furnishing of lenses for the aid

Mr. KoнN. For the aid of vision. I presume you don't mean a sunglass ground to prescription.

Mr. GRIDER. No.

Mr. KOHN. Just an ordinary sunglass that keeps the glare out and that is all.

Mr. GRIDER. You say that some of these sunglasses that you buy across the counter are damaging to vision?

Mr. KOHN. No; they do not damage vision. They merely distort at times, or they cause lines to form, or they have different shadings. It depends upon the quality of the sunglass. There are good ones and bad ones.

Mr. GRIDER. This is also true of the windshield of a modern automobile; isn't it?

Mr. KOHN. Yes, sir; and this is one of the things which the American Optometric Association is deeply concerned with, and our motorists vision committee has had many conferences with automobile manufacturers and others on that subject, such as the National Safety Council. You can have the same problem, especially with the kind of windshields that are colored on the top.

Mr. GRIDER. They all are now.
Mr. BROYHILL. Mr. Chairman.
Mr. WHITENER. Mr. Broyhill.

Thank you, Mr. Chairman.

Mr. BROYHILL. I would like to follow through on that line of discussion. Did I understand you correctly in saying that the bill, as you interpret it, would not prohibit the sale of sunglasses by drugstores, department stores, et cetera?

Mr. KOHN. That is the way I understand it, yes sir.

Mr. BROYHILL. So you would have no objection, as a supporter of this legislation, for clarifying language to be inserted in the bill to make it abundantly clear that this does not restrict the sale of sunglasses by anyone?

Mr. KOHN. Nonprescription.

Mr. BROYHILL. Yes, I understand. Now, I understand also that Mr. Sisk, the sponsor of this legislation, touched on this earlier before I arrived. But getting back to the language, I think this section 8, subparagraph 4, concerns the sale or offering to sell eyeglasses, spectacles, frames, mountings, or lenses, or to duplicate lenses, et cetera. If I broke these glasses, which are glasses prescribed by an ophthalmologist in Arlington County-broke them on a Saturday afternoon over in the District of Columbia, let's say, suppose I broke the temple off, could I get that replaced under this legislation, if this legislation became law, by an optician?

Mr. KоHN. Not unless you had a prescription with you or procured another prescription.

Mr. BROYHILL. In other words, if I just broke this, the screw came out of here and that fell off.

Mr. KoнN. Oh, no, that is a repair. That would be simply a repair.

Mr. BROYHILL. Suppose an arm broke-what do you call this, the temple?

Mr. KонN. The temple.

Mr. BROYHILL. This part of it.

Mr. KOHN. Under the terms of this bill, you would not be able to do that.

Mr. BROYHILL. Isn't that somewhat ridiculous?

Mr. KOнN. We have followed, as I said before, the Oklahoma law in that, and that was sustained. The very same argument was presented by Mr. Justice Frankfurter, the late Justice Frankfurter, who said, "If I came from Massachusetts and broke my glasses here, what am I going to do about it?" And we explained that we felt that he should have some professional advice before he gets a repair made, unless he has his actual prescription with him.

Mr. BROYHILL. We are talking about the frame, not the lenses. Mr. KOHN. That was sustained. I say, frankly, that that is stringent. It is a stringent provision.

Mr. BROYHILL. Then you don't feel this is abundantly fair. You say you think it is a stringent provision. Could I use other words and say it is not abundantly fair?

Mr. KOHN. Being the advocate of the bill, I would not comment on that. But the presentation or the argument that you just rendered, as I said, was made at the Supreme Court by several of the Supreme Court Judges.

Mr. HORTON. Would the gentleman yield at this point?

Mr. KOHN. But they did sustain the objection

Mr. BROYHILL. But was the thrust of their rule-I have not read the ruling but as I understand it, and you will certainly correct me if I am wrong that they were not necessarily subscribing to the equity and the fairness of the Oklahoma law, but more along the line that this is not something on which the Supreme Court should be superimposing their judgment of

Mr. KOHN. Of the legislature of Oklahoma; yes sir, you are right. Mr. BROYHILL. So that doesn't lend any support for the fairness and the equity of the Oklahoma law insofar as the opinion of the Supreme Court is concerned, does it?

Mr. KонN. No sir.

Mr. BROYHILL. I yield.

Mr. HORTON. I just want to ask this, following up Congressman Broyhill's question, with regard to the temple. Suppose I drop my glasses and it became necessary to have them adjusted. I mean I could bend them myself, but I am not satisfied with that, so I go down to an optician. In most cases, they will give you free adjustments or adjust your glasses. Would this law prohibit that?

Mr. KоHN. No, sir.

Mr. HORTON. There would be no prohibition against adjustments. Mr. KOHN. Not against adjustments, no sir.

Mr. HORTON. Of frames.

Mr. KонN. No, sir.

Mr. HORTON. How do you distinguish between that and Congressman Broyhill's illustration of a replacement of a temple?

Mr. KOHN. Well, frankly, I am not in a position to explain it technically, but I am told that there is a technical reason why, if any material part of a whole pair of lenses is broken, either a temple or a front, or a lens, that there should be either a written prescription available, or that there should be, either a physician or an ophthalmologist or an optometrist to prescribe them, and then you can have it made and done by an optician.

Mr. HORTON. Under this definition on page 2, the proposed bill in the definition of optometry includes:

The prescription or adaptation used in the furnishing of lenses, prisms, or frames for the aid thereof.

Now, why wouldn't that prohibit the adaptation of frames?

Mr. KOHN. Would that prevent it?

Mr. HORTON. Yes.

Mr. KOнN. By an optician?

Mr. HORTON. Yes.

Mr. KоHN. No, because he is exempted in another section.

Mr. HORTON. He is exempted?

Mr. KонN. Yes, sir. There is another section.

Mr. HORTON. Where is he exempted.

Mr. KоHN. Sir?

Mr. HORTON. Where is he exempted?

Mr. KонN. I have it here someplace.

Mr. HORTON. This defines optometry and uses that definition.

Mr. KонN. On page 14, line 1, subsection C. This act other than section 8, and that is the one prohibiting advertising and things of that sort.

Mr. HORTON. On page 14, what line?

Mr. KоHN. The first line:

Shall not apply to any person who fills the written prescription of a physician, surgeon, or an optometrist, and who does not otherwise practice optometry.

Mr. HORTON. But that exempts. It says, "who fills the written prescription." Suppose I don't have any written prescription. I just go in on a Saturday afternoon. My glasses are out of adjustment. I just go in to have them adjusted. I want to be permitted to do that. Mr. KоHN. Yes.

Mr. HORTON. But I'm afraid that the bill doesn't permit that. This says:

This act, other than section 8, shall not apply to any person who fills the written prescription of a physician, surgeon, or an optometrist and who does not otherwise practice optometry.

Mr. KOHN. Well, adjustment is definitely a part of the filling of a prescription, and, therefore, the provision here which requires that it may only be done upon a written prescription or upon getting a new one would apply.

Mr. HORTON. You mean the blanket fact that he can fill a precription then would permit him to make ajdustments of frames? Mr. KонN. Yes sir.

Mr. HORTON. Why doesn't he make adjustments of the lenses?
Mr. KоHN. Of the lenses?

Mr. HORTON. If he has the blanket authority under the fact that he is permitted to fill written prescriptions.

Mr. KоHN. To define what I think you are saying, you mean an adjustment of the physical position of the glasses? Is that what

you mean?

Mr. HORTON. Yes.

Mr. KOHN. Certainly not an adjustment of the power of the lenses. He couldn't change that under any condition, nor would we want that, nor would anybody want that.

Mr. HORTON. I tend to disagree with you with regard to this exemption, because I don't read that in there. It would seem to me still that I would have to have some sort of a prescription in order to have it adjusted.

Mr. KOHN. The law does provide, and as I say, it follows the provisions of the Oklahoma law and, incidentally, there are other States, there are a number of other States which prohibit the duplication of lenses, the duplication of glasses without a prescription being present. Now that is a duplication. But, an adjustment is an entirely different thing. That is a mechanical act.

Mr. HORTON. Thank you.

Mr. BROYHILL. Mr. Kohn, I should like to commend you and your society for your desire and your efforts in trying to raise the standards of the practice of optometry. What concerns me and,

some other members of the committee is whether it will create some inequities. Of course, this might be unfair to the optician. It might be needlessly inconvenient to the public whom you are trying to protect.

I am wondering, since the bill provides for penalties for violations of certain provisions of the proposed law, and since we are trying to provide more protection for the public, as well as raise the standards of the practice of optometry, whether or not we should also make it clear in the legislation about the liability of the optometrist when he fails to report or recommend to his patient that treatment of the eye difficulty requires medical treatment from a physician, glaucoma or whatever it might be, various diseases of the eye, cataracts or things that might require medical treatment or surgery, that you would recognize as not included in the practice of optometry, whether or not in raising the standards and elevating the practice of optometry, whether we should also place more responsibility on the optometrist to protect the public in recommending treatment by a physician in the event it is necessary.

Mr. WHITENER. Will the gentleman yield to me?

Mr. BROYHILL. Yes.

Mr. WHITENER. I believe that under the general law we already have the ground rules which determine the liability of a professional man for negligence. I don't know what the rule is in the District of Columbia, but without any statute in my State the professional man, the medical man, or optometrist, I think, would be liable if he failed to use that degree of skill which a person in that profession would normally use in a given case. I really think———

Mr. BROYHILL. I appreciate the assistance from the chairman in this regard, but it is my understanding that this problem is a little more sophisticated than that. I have a letter here from an ophthalmologist, who practices in Arlington, Va., not my ophthalmologist, but one whom I'm familiar with. He said "I can present a witness if necessary who has lost half of her vision from glaucoma because she trusted two optometrists to care for her eyes." They each failed to inform her that she had glaucoma, and they each could not be held liable for such failure because, "Optometry does not deal with the treatment of eye disease." The chairman is an attorney and can quote the law much better than I, but apparently there is something not provided in the law now that would protect this individual. That is why I asked the question.

Mr. WHITENER. I might state that ophthalmologists have made

errors too.

Mr. BROYHILL. There is no question about that, but I think they would be held liable, wouldn't they?

Mr. WHITENER. Lawyers are faced with this every day.

Mr. BROYHILL. I asked the question of the witness. I wonder if he would like to add a comment on the question of the chairman.

Mr. KOHN. The chairman has practically answered the question, and that is that every time a statute creates a liability or creates a responsibility, the failure to obey that responsibility automatically— well, I won't say automatically, he has to be tried subjects the one who fails to do this to forfeiture of license, and, as a matter of fact, strangely enough, I have an exhibit N, which I haven't presented, which is the official opinion of Charles S. Brind, who is counsel for