Mr. HARSHA. Could Dr. Jones buy this practice from Mrs. Brown? Mr. KонN. Oh, yes.

Mr. SISK. Would my colleague yield on this point? I think the principal idea developed here is to permit a practice which I think is generally permissible in the medical profession. I know, for example, a medical doctor, who happened to be my mother's doctor, who recently passed away. Another doctor came in and was using his office and was continuing to treat his patients because he had quite a heavy patient load, until such time as the situation could be worked out. In fact, after some 4 or 5 months, the office did change and a new group of physicians came in. The intent in this bill was for continuity of caring for a group of patients who would be left to some extent dangling, and certainly not to lower the professional standards or an effort to get over into this idea of the so-called corporate structure where they are hiring optometrists and operating on that type of basis.

Mr. WHITENER. If the gentleman will yield, if that is a good provision, why do you limit it to widows? It may be a dependent child who would be left by this optometrist with no widow. It may be a dependent mother, a dependent brother.

Mr. SISK. I think the gentleman's point is well taken. I simply wanted to explain what I understood to be the intent of this particular provision, which upon the passing of an ophthalmologist, a medical doctor, or an optometrist in a case such as that we are talking about, would preclude the continuity of the office and more or less would leave patients dangling who might be in the process of having eyeglasses fitted.

Mr. WHITENER. It seems to me that it is being charitable to do that for the widow; perhaps the administrator or the executor of the estate ought to be able to wind up a practice.

Mr. MCCRARY. It may well be that we should provide instead for the estate of the deceased optometrist, which perhaps would be a more comprehensive term.

Mr. Sisk. Mr. Chairman, I hope all members will complete their questioning. I would like, Mr. Chairman, before we adjourn, to determine the plans of these gentlemen. Dr. McCrary, you would be available at any time later on in case of questions, because you are located nearby; is that right?

Mr. MCCRARY. Yes, sir.

Mr. SISK. And you, Dr. Hoff, of course are here in the District. Dr. Morgan, you are from the University of California. I did have several questions, Mr. Chairman, that I did want to ask more for clarification purposes. I simply want to determine from those who might not be able to return, in the event that there were questions that came up.

Mr. WHITENER. Is Mr. Kohn going to be here?

Mr. KOHN. I will be here at any time.

Mr. WHITENER. Why don't we ask these gentlemen to return later. I understand we will go ahead as scheduled and you gentlemen will be available. I did want to ask Mr. Kohn a couple of questions which are not so much on the merits of the bill, but on its incidental provisions. I noticed on page 19 that the bill provides that the testimony of an optometrist "licensed under this act relating to the practice of optometry as defined in this act shall be received at any trial or

hearing in the courts of the District of Columbia as qualified expert evidence and testimony in respect to the practice of optometry." Isn't that a rather unusual provision in a bill? Wouldn't that substitute the judgment of the Congress in a blanket way for the authority and the judgment of the presiding judge to determine whether or not, in fact, this man is an expert?

Mr. KOHN. It does not, sir, so far as optometry is concerned. A similar section is in several State statutes. In my own State of New York, we have that already. That has been in effect since 1946.

Mr. WHITENER. It is standard procedure in the trial practice everywhere as far as I know that the court, and the court only, determines whether or not a particular witness is a qualified expert witness. Mr. KOHN. The court may still determine that.

Mr. WHITENER. I don't see how it could here.

Mr. KонN. The court need not accept the testimony or give credibility to the testimony.

Mr. WHITENER. That isn't what this bill says. It says, "shall be received."

Mr. KонN. Shall be received.

Mr. WHITENER. As qualified expert evidence and testimony. The court wouldn't have any authority whatever because "shall" doesn't mean but one thing. That means this is it, brother.

Mr. KOHN. You are right there. That might well read, "may," making it permissive.

Mr. WHITENER. If it reads "may" you don't need it.

Mr. KонN. We do in a way.

Mr. WHITENER. I don't know what its purpose is, but I know what the language is. The language is that if a man can walk into that courtroom and wave a license in the District of Columbia, he can go on a witness stand and testify as an expert on anything concerning optometry, even though the judge sitting there might not think he is qualified to do so at all. Suppose Dr. Morgan here went into the courts in California. If the lawyers didn't admit that he was an expert in his profession, he would have to tell them where he was educated, what practical experience he had, and then the attorneys would be permitted to cross-examine him further, notwithstanding his broad experience, about his specific experience in the limited area that the court is inquiring into, and then the judge would determine, after hearing all that, whether Dr. Morgan was an expert or not. Isn't that what you found, Doctor, if you have ever testified as an expert?

Mr. MORGAN. That is true in California.

Mr. WHITENER. What you are saying here is that he shall be accepted as an expert, "a qualified expert on testimony in respect to the practice of optometry." I don't know about the details of it, but maybe a man has devoted his entire life to twisting frames, as Dr. McCrary mentioned awhile ago. But yet, this would make him an expert on anything relating to optometry.

As a lawyer, Mr. Kohn, do you think that would be a good provision?

Mr. KоHN. That is not the intent. The intent is not to impose. upon the judge doing anything that would affect his judicial discretion or ability to conduct the trial in accordance with his judgment. We do have, however, situations, we did have situations where a judge

Mr. HARSHA. Could Dr. Jones buy this practice from Mrs. Brown? Mr. KонN. Oh, yes.

Mr. SISK. Would my colleague yield on this point? I think the principal idea developed here is to permit a practice which I think is generally permissible in the medical profession. I know, for example, a medical doctor, who happened to be my mother's doctor, who recently passed away. Another doctor came in and was using his office and was continuing to treat his patients because he had quite a heavy patient load, until such time as the situation could be worked out. In fact, after some 4 or 5 months, the office did change and a new group of physicians came in. The intent in this bill was for continuity of caring for a group of patients who would be left to some extent dangling, and certainly not to lower the professional standards or an effort to get over into this idea of the so-called corporate structure where they are hiring optometrists and operating on that type of basis.

Mr. WHITENER. If the gentleman will yield, if that is a good provision, why do you limit it to widows? It may be a dependent child who would be left by this optometrist with no widow. It may be a dependent mother, a dependent brother.

Mr. SISK. I think the gentleman's point is well taken. I simply wanted to explain what I understood to be the intent of this particular provision, which upon the passing of an ophthalmologist, a medical doctor, or an optometrist in a case such as that we are talking about, would preclude the continuity of the office and more or less would leave patients dangling who might be in the process of having eyeglasses fitted.

Mr. WHITENER. It seems to me that it is being charitable to do that for the widow; perhaps the administrator or the executor of the estate ought to be able to wind up a practice.

Mr. MCCRARY. It may well be that we should provide instead for the estate of the deceased optometrist, which perhaps would be a more comprehensive term.

Mr. Sisk. Mr. Chairman, I hope all members will complete their questioning. I would like, Mr. Chairman, before we adjourn, to determine the plans of these gentlemen. Dr. McCrary, you would be available at any time later on in case of questions, because you are located nearby; is that right?

Mr. MCCRARY. Yes, sir.

Mr. SISK. And you, Dr. Hoff, of course are here in the District. Dr. Morgan, you are from the University of California. I did have several questions, Mr. Chairman, that I did want to ask more for clarification purposes. I simply want to determine from those who might not be able to return, in the event that there were questions that came up.

Mr. WHITENER. Is Mr. Kohn going to be here?

Mr. KOHN. I will be here at any time.

Mr. WHITENER. Why don't we ask these gentlemen to return later. I understand we will go ahead as scheduled and you gentlemen will be available. I did want to ask Mr. Kohn a couple of questions which are not so much on the merits of the bill, but on its incidental provisions. I noticed on page 19 that the bill provides that the testimony of an optometrist "licensed under this act relating to the practice of optometry as defined in this act shall be received at any trial or

hearing in the courts of the District of Columbia as qualified expert evidence and testimony in respect to the practice of optometry." Isn't that a rather unusual provision in a bill? Wouldn't that substitute the judgment of the Congress in a blanket way for the authority and the judgment of the presiding judge to determine whether or not, in fact, this man is an expert?

Mr. KоHN. It does not, sir, so far as optometry is concerned. A similar section is in several State statutes. In my own State of New York, we have that already. That has been in effect since 1946.

Mr. WHITENER. It is standard procedure in the trial practice everywhere as far as I know that the court, and the court only, determines whether or not a particular witness is a qualified expert witness. Mr. KOHN. The court may still determine that.

Mr. WHITENER. I don't see how it could here.

Mr. KOHN. The court need not accept the testimony or give credibility to the testimony.

Mr. WHITENER. That isn't what this bill says. It says, "shall be received."

Mr. KонN. Shall be received.

Mr. WHITENER. As qualified expert evidence and testimony. The court wouldn't have any authority whatever because "shall" doesn't mean but one thing. That means this is it, brother.

Mr. KOHN. You are right there. That might well read, "may," making it permissive.

Mr. WHITENER. If it reads "may" you don't need it.

Mr. KоHN. We do in a way.

Mr. WHITENER. I don't know what its purpose is, but I know what the language is. The language is that if a man can walk into that courtroom and wave a license in the District of Columbia, he can go on a witness stand and testify as an expert on anything concerning optometry, even though the judge sitting there might not think he is qualified to do so at all. Suppose Dr. Morgan here went into the courts in California. If the lawyers didn't admit that he was an expert in his profession, he would have to tell them where he was educated, what practical experience he had, and then the attorneys would be permitted to cross-examine him further, notwithstanding his broad experience, about his specific experience in the limited area that the court is inquiring into, and then the judge would determine, after hearing all that, whether Dr. Morgan was an expert or not. Isn't that what you found, Doctor, if you have ever testified as an expert?

Mr. MORGAN. That is true in California.

Mr. WHITENER. What you are saying here is that he shall be accepted as an expert, "a qualified expert on testimony in respect to the practice of optometry." I don't know about the details of it, but maybe a man has devoted his entire life to twisting frames, as Dr. McCrary mentioned awhile ago. But yet, this would make him an expert on anything relating to optometry.

As a lawyer, Mr. Kohn, do you think that would be a good provision?

Mr. KOHN. That is not the intent. The intent is not to impose upon the judge doing anything that would affect his judicial discretion or ability to conduct the trial in accordance with his judgment, We do have, however, situations, we did have situations where a judge

would say: "I just will not accept the optometrist because he is an optometrist, period."

Mr. WHITENER. Yes; but you don't want to go

Mr. KOHN. No matter how he is qualified.

Mr. WHITENER. A judge might very well decline to recognize a surgeon or a lawyer. For instance, we lawyers have a law license, but I dare say that there is not a one of us here who are lawyers who would say that we are qualified to give expert evidence as to what the law in our State is on every subject of the law.

Mr. KонN. That is true.

Mr. WHITENER. Some lawyers wouldn't know an antitrust case from a bucket of apples. There are others who are quite expert. Mr. KOHN. Well, perhaps the language is improperly drawn, but the intent of it is that merely because a man is an optometrist and even though he has qualifications, that simply because he is an optometrist that his testimony be rejected.

Mr. WHITENER. Your second part of that subject, section C, could very well be unconsitutitional in some types of actions, because it says that: "certificates of ocular or visual condition, acuity, and efficiency issued by any duly licensed optometrist under this act shall be accepted as qualified evidence of the ocular, visual condition, acuity, and efficiency of a person to whom such certificate shall relate in any trial or hearing in the courts of the District of Columbia and by any officer or employee of the government of the District of Columbia in the performance of his ditues."

Now, suppose that John Brown in 1967, after this became the law, if it did, was charged in a criminal case with negligent homicide with an automobile, and the main ground was that he had a limited driver's license which required him to wear glasses of a certain type, but he had gone down to the dime store and bought a pair that he thought were pretty good glasses, and this was one of the allegations of culpable negligence, criminal negligence. You don't think that this would hold water if the prosecuting attorney tried to offer a certificate against the defendant in a criminal case doing that?

Mr. KOHN. You are absolutely right, sir. The phrase here, "In any trial or hearing in the courts of the District of Columbia," should not have been in there, because you can't cross-examine the certificate.

Mr. WHITENER. That is right, and I think that if this ever came before any court that ever read the Constitution, they would say that it was unconstitutional insofar as it applied to a criminal case. Mr. KонN. Agreed.

Mr. WHITENER. And it might well be true if it involved the revocation of a hacker's license or something which took from him a property right, such as the right to earn a living.

Mr. KOHN. Not necessarily, not necessarily, sir. You see, the situation that this seeks to remedy is a very practical one, not with respect to trials, because concededly you can't cross-examine him, as I said, for a certificate. But there are many, many instances where certificates need only be furnished, particularly in schools, for applications for jobs and things of that sort. Many of the departments, many of the schools, many of the officials in these departments and schools say, "We will accept the certificate of an ophthalmologist, but we will not accept the certificate of an optometrist," and that is the thing we seek remedy by that. That is the only purpose that is intended.