ruling against Dr. Silver and in dismissing his complaint and amended complaint, our district court held (p. 684): "Optometry is not a learned profession, comparable with law, medicine, and theology, notwithstanding standards of education are prescribed by the statute and rules of the Board. It certainly has nothing in common with law or theology and, until recently, it was never claimed to be a part of medicine. E. E. Arrington in his 'History of Optometry' (1929) says: ‘1. Òcular refraction is not, and never has been, a part of medicine, either by inheritance, basic principles, development, or practice. It is an applied arm of optical science, resting upon the work and discoveries of physicists and opticians through the ages, down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles, so as to produce focused and single vision with the least abnormal exertion on the part of the eye. And, finally, its distinction from and independence of medicine has been affirmed by Supreme Court decisions in every case in which the question has been brought up for adjudication.' "The optometrist licensed to practice in the District of Columbia is expressly prohibited from using any title indicating that he is engaged in the practice of medicine or the treatment of the eye. Physicians and surgeons are exempted from the provisions of the act, and may practice optometry without being licensed thereunder (secs. 279 and 280, Title 20, D.C. Code (1929)). "Furthermore, in the District of Columbia many of the licensed optometrists advertise in the press and in the telephone directory. They maintain store fronts with attractively decorated display windows. Electric signs are not uncommon. "The facts in evidence justify the conclusion of the Court of Appeals of Maryland in the case of Dvorine v. Castelberg Corp. (170 Md. 661, 669, 185 A. 562, 566), and the court here finds that optometry 'is essentially a mechanical art which requires skill, manual dexterity, and a knowledge of the use and application of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal which may be found in the human eye, rather than the knowledge and learning appropriate to professions or callings which deal with causes and conduct rather than with conditions and effects. It is in its nature empirical rather than learned.'" The court further finds that the defendants, Lansburgh & Bro. and Buhl Optical Co., are not engaged in the practice of optometry in the District of Columbia contrary to the provisions of the act entitled "An Act to regulate the practice of Optometry in the District of Columbia," approved May 28, 1924. Dr. Silver appealed from the adverse decision of our district court to the U.S. Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the ruling of the District Court in Silver v. Lansburgh and Bro., et al. (1940), 72 App. D.C. 77, 111 F. 2d 518. The rationale and reasoning of the Court of Appeals is set forth in the following excerpts from its opinion (pp. 518–519, 520): "Appellants are licensed and registered optometrists. They brought this suit on behalf of themselves and others similarly situated against appellees, Lansburgh & Bro., a corporation conducting a large department store in Washington City, and Buhl Optical Co., a District corporation organized to operate and own optical and optometrical stores, to restrain them from directly or indirectly engaging in the practice of optometry in the District of Columbia. The right to bring the suit is not challenged. Čf. Ezell v. Ritholz, 188 S.E. 39, 198 S.E. 419, 423, and cases cited there. "Appellants, in the main, base their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a corporation or nonoptometrist. * * * * "The court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part of medicine. The court was, therefore, of opinion that neither defendant is engaged in the practice of optometry contrary to the statute. In the recent case of United States v. American Medical Association (decided March 4, 1940), 72 App. D.C. 12, 110 F. 2d 703, we pointed out that the practice of medicine in the District of We Columbia is subject to licensing and regulation, and we stated that, in our opinion, it might not lawfully be subjected to commercialization and exploitation. cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs licensed physicians to treat patients, itself receives the fee, and the profit object is its main purpose, the arrangement being such as to divide the physician's loyalty and destroy the well-recognized confidential relation of doctor and patient. This brings us, then, to consider whether this rule applies to the practice of optometry. "Many States have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the cases, and are of the opinion the best considered adopt the view that optometry is not one of the learned professions. "Optometry is said by a well-known writer on the subject not to be a part of medicine, ‘either by inheritance, basic principles, development or practice.' It is 'an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye.' Arrington's History of Optometry, page 24 (1929). "There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though universally all are deemed professions. "We find nothing in the statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. That purpose may be fully accomplished, though the person rendering the service is employed by a corporation. "We think the lower court was correct in denying injunctive relief, and the decree is, therefore, affirmed with costs." H.R. 12937 in section 2 thereof asks Congress to declare the practice of optometry to be a profession. From the nature of the regulations set forth in H. R. 12937, including regulations forbiding persons, including corporations, to hire or employ optometrists in the practice of optometry, H.R. 12937 is in effect declaring optometry to be a learned profession and is attempting to regulate it as such. The medical society contends that optometry should not be declared to be a learned profession and should not be regulated as such. No public health need requires such legislative action and it is not in the public interest. H.R. 12937 in section 12(c) attempts to make certificates issued by optometrists qualified expert evidence in any trial or hearing in the courts of the District of Columbia and in other instances. The courts in the District of Columbia have consistently decided that expert testimony dealing with defects and diseases of the eye must come from a medical expert with medical training in the diagnosis and treatment of the eye. H.R. 12937 in effect reverses these decisions, all of which are clearly in the public interest, by making statements issued by licensed optometrists expert evidence in any trial or hearing in the courts of the District of Columbia. The courts of the District of Columbia in the matter of expert testimony, particularly pertaining to the eye, have followed the landmark desision of Ewing v. Goode (C.C.S.D. Ohio), 78 F. 2d 442 (1897). In Ewing, C. J. Taft, who later became both Chief Justice of the Supreme Court of the United States and President of the United States, in directing a verdict for the defendant, Dr. Goode, for allegedly causing the loss of sight in the right eye and the impairment of sight in the left eye of the plaintiff, for lack of expert medical testimony supporting the plaintiff's claim, held (p. 443): "But when the case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent upon expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it to be submitted to the jury." Recent cases in the U.S. Court of Appeals following and approving Ewing are: Brown v. Keaveny (1963), 117 U.S. App. D.C. 117; 326, F. 2d 660; Quick)v. Thurston (1961), 110 U.S. App. D.C. 169, 172; 290 F. 2d 360, 363; Rodgers v. Lawson (1948), 83 U.S. App. D.C. 281, 282; 170 F. 2d 157, 158; and Hohenthal v. Smith (1940), 72 App. D.C. 343, 346; 114 F. 2d. 484, 497. Whether or not a party is qualified to give expert medical testimony in court must be determined by a court from the actual medical training, knowledge, and experience of the witness and the courts of the District of Columbia should not be shackled in their determination of who is a qualified medical expert witness by a legislative fiat that a licensed optometrist's statements are considered to be expert evidence in eye cases in any court in the District of Columbia. The enactment of such legislation is not in the public interest and certainly will not improve but could hinder, the administration of justice in cases involving eye problems in the District of Columbia. Optometrists, since 1938, have been endeavoring to have Congress enact legislation quite similar to H.R. 12937. The medical society has opposed such legislation and up to the present time Congress has refused to enact legislation similar to that proposed in H.R. 12937. The medical society opposes H.R. 12937 on the basic ground that this legislation is not in the public interest and does not meet any health needs of the District of Columbia. The medical society respectfully requests that the Commissioners of the District of Columbia and the Corporation Counsel oppose the enactment of H.R. 12937. Representatives of the medical society are prepared to discuss this matter with the Commissioners, their representatives, the Corporation Counsel or his representatives, and to testify against H.R. 12937 in Congress. Yours very truly, WARREN E. MAGEE, General Counsel for the Medical Society of the District of Columbia. 89ru CONGRESS 2D SESSION H. R. 12937 IN THE HOUSE. OF REPRESENTATIVES FEBRUARY 21, 1966 Mr. Sisk introduced the following bill; which was referred to the Committer on the District of Columbia A BILL To amend the Act of May 28, 1924, to revise existing law relating to the examination, licensure, registration, and regulation of optometrists and the practice of optometry in the District of Columbia, and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3. That the Act entitled "An Act to regulate the practice of 4 optometry in the District of Columbia", approved May 28, 5 1924, as amended (D.C. Code, secs. 501-522), is amended 6 to read as follows: "SECTION 1. This Act may be cited as the 'District of 8 Columbia Optometry Act'. 9 sk illed "SEC. 2. Optometry is hereby declared to be a profes I mechanical art involving human vision 1 -sion. The practice of optometry in the District of Columbia 2 is hereby declared to affect the public health, welfare, and 3 safety, thus requiring regulation and control in the public 4 interest. It is further declared to be a matter of public 5 interest and concern that the practice of optometry be lim6 ited to qualified persons, admitted to the practice-of-optoni7 etry in the District of Columbia-mider the provisions of this 8 Actr 9 10 11 12 13 14 15 16 17 18 19 20 21 "SEC. 3. As used in this Act "(1) Commissioners' means the Board of Com missioners of the District of Columbia; is defined to combination, or-all of the following acts or practices: the employment of any objective or subjective-means methods and devices in the for the examination-of-the-human eye, including-its examinations of the human eye associated structures; the measurement-of-the-powers for the purpose of determing or range of hummm vision; the determination-of the. visual defects and the accommodative and retractive powers of the human eye; adaption of lenses or prisms the determination of the scope of the-functions of, the for the aid and relief heman eye in general; the prescription, adaptation,-use, thereof or or furnishing of lenses, prisms,-or-frames-for-the aid 22 thewof the prescribing, directing the use of, or admin=- 23 222 24 25 istering vision training or orthoptics, and the use of any or optical device in connection therewith; the prescribing of contact lenses for, or the fitting or adaptation of |