Then, the act does this: The act says that being a profession, which the court says it is not, a corporation cannot hire these gentlemen in their establishment because this is a corporate practice of optometry. This has been litigated in this court, and this jurisdiction, and in our district court and in our court of appeals in the Silver v. Lansburg, which is cited in my little memorandum and which I hope you gentlemen will read.

It is very clear, and this is litigation among optometrists, just as this other litigation these gentlemen were describing to you was litigation among optometrists trying, as they call it, to have the courts declare them to be a learned profession, so an optometrist cannot work for Sears and Roebuck, he cannot work for Lansburgh's, but the courts have said that he has a right to do this because it is a calling and you cannot forbid him from doing it.

So you are getting into serious constitutional areas when you attempt to take a calling and say it is a profession, and then regulate it as if it were a profession.

Now, gentlemen, this is what this act does and our courts have said, the Silver case is still the law, that you cannot do this.

And the gentleman from Tennessee and the gentleman, I think, from Texas, have made this statement, I think it is very interesting, they want optometrists to be on the same plane as an ophthalmologist. This is the key to the whole picture.

Tennessee has rejected this, and this gentleman's own State in a very late decision, we talk about archaic, here is the State, here is the case, may it please the court-sorry, may it please the gentlemen of the committee, American Chemical Corporation v. Sykes (391 Southwest 2d 643), decided by the highest court of Tennessee on June 2, 1965. Now, in this case the optometrist did what he wanted to do. He went into a court, qualified as an optometrist, and testified that acid spilled in the eye of a patient caused blindness, and based on that testimony which was contrary to the testimony of an ophthalmologist, the district court at the lower level affirmed the compensation award based on this so-called expert testimony of an optometrist.

Here is what the highest court in Tennessee said:

The trial court erred in awarding the claimant workmen's compensation benefits for the loss of vision in his right eye. The evidence failed to establish that there was a causal connection bet een the splashing of acid into the eye while he was at work and the loss of vision. The complainant consulted an optometrist 15 minutes after the acid splashed in his eye. The optometrist's examination disclosed a mild conjunctivitis, a reddening of the blood veins and a 2400 vision in his right eye. The optometrist testified that his blindness came from the acid in his eye, The ophthalmologist testified to the contrary, giving medical reasons therefor. However, the court followed the optometrist.

In reversing, the highest court of Tennessee said this:

An optometrist's training is in a field of measuring the powers of vision and fitting the lenses for correction thereof, and does not qualify him as a medical expert in the field of diseases of the eye. Therefore the testimony of the optometrist who was a witness for the claimant was of no more probative value in determining the causal connection between the accident and claimant's loss of vision than the claimant himself.

Now this act attempts in the sections, to reverse the decisions. However, the court of appeals and the Supreme Court of the United States have ruled precisely in the same manner.

In my memorandum I have pointed out to you that years ago, this is an eye case, and it is this point, Judge Taft, before he became

President and subsequently, Supreme Court Justice of the United States, wrote the famous landmark opinion of Ewing v. Goode, 78 F. 2d. 442 (1897). That was a glaucoma case where a doctor was sued on the theory that his treatment had caused the loss of sight in the eye. There was no medical testimony in that case substantiating the complainant's claim.

Judge Taft said that in this field of treatment of the eye, in the eye field there is no other guide but medical testimony, no other guide.

Now that decision was rendered a long time ago, but our court of appeals has adopted this opinion, I have given you four cases from 1965 on back where they relied on Ewing v. Goode, so that this-the optometrist is not an expert.

May it please the committee, you cannot make them one by just saying he is, by a legislative fiat. I don't think the court will accept this.

Now, our position on behalf of the medical society I think is a simple one, I am not going to read my statement, I am about finished, may it please you gentlemen.

Regulations, for example, take the State of Virginia-the optometrists tried to do in the State of Virginia precisely what they are trying to do before this committee; they tried to have their profession called a learned profession, and we see the same language in the beginning of that act as we see here coming from the American Optometric Association; optometry is a profession. But, the act stopped there.

The Virginia act permits advertising, permits commercial hiring of optometrists, and it does not give them the things they ask for in this act.

Now, I want to go into this antidiscrimination matter.

Oh, by the way, I might tell the court that the very latest decision

Mr. SISK. This is a legislative committee.

I appreciate the gentleman's remarks, he is testifying as a fine lawyer, but if he will just stick to the bill here under consideration and complete his statement as quickly as possible, we would appreciate it.

Mr. MAGEE. Yes, sir. I merely want to refer to this matter of whether or not opticians can fit contact lenses under the direction of a physician, which has been litigated in Mississippi and recently decided in the case reported in the State Board of Optometry v. Charles Chester, 169 Southern Reporter 468, argued twice in the Court of Appeals of Mississippi, and here is what they said:

This court cited with approval High v. Ridgeway's Opticians, 129 Southeast Second 301, 1963, and states that the optician fitting the contact lenses under the doctor's prescription amounted to no more than a mechanical adjustment and he is practicing neither optometry nor medicine when he does this.

You gentlemen asked questions in regard to the antidiscrimination provisions in the act which we have recommended be deleted.

It want to leave with the committee an exhibit. This is an exhibit emanating from the optometrists. It came about in this fashion, I will summarize briefly what happened.

The optometrists were unable to get a provision in the Virginia bill providing against discrimination. The optometrists went to the attorney general of Virginia and the attorney general of Virginia

ruled that public officers could not discriminate in sending any patients in the schools to the family doctor. Here, and I ask you to read carefully the optometric letter, here is a letter sent out by the Virginia Optometric Association, October 9, 1964. It went to the head of every school in Virginia. It threatened each one of these school gentlemen with prosecution or court action if they did not take the referral provisions on the State form, which merely is a referral by the State health officers to the general practitioners for initial examination, because the report requires an opinion on pathology. Now, this cannot be done in Virginia any more.

This has to be changed under the attorney general's ruling, it is being fought, it hasn't gone into the courts yet, but this is the function of the section which is in the bill and this is how it works, because once you gentleman have put such a provision in, this letter will go out to every school superintendent, to every commissioner, to everyone in the District of Columbia, every university operating in this field with a threat of legal action from the local optometric association if we don't stop referring eye cases to a doctor of medicine. It is just that simple. This is the evidence of it.

This is the construction we placed on it, and it is the construction that we are entitled to place on it and that is why it is here, so that they can be called, and they make it very plain that they do not want to be called a doctor of optometry, they say "We want to be called eye doctors, eye specialists," and take out the words "family physicians," and "ophthalmologists."

This is the purpose of section 14, and I will leave the exhibit with you gentlemen, so this is our position: the medical society opposes the bill and feels under the grants you have given to the Commissioners, they can regulate it.

(The letter referred, dated October 9, 1964, follows:)

VIRGINIA OPTOMETRIC ASSOCIATION,

October 9, 1964.

MR. EARL C. FUNDERBUrk,
Superintendent of Schools,
Fairfax County, Fairfax, Va.

DEAR MR. FUNDERBURK: This letter is being written to all school division superintendents in Virginia following a meeting with Dr. Woodrow W. Wilkerson. He suggested that superintendents are the logical persons to correct a problem that concerns the profession of optometry to varying degrees throughout the State.

Stated simply, the problem is this: Often, when a child is found to have a vision deficiency, a school nurse refers the child to an ophthalomologist or a family physician. In many instances, also, forms sent home with the child direct the parent to take the child to an opthalmologist or the family physician.

This has resulted in embarrassment to optometrists and is discriminating against these practitioners who are specifically licensed in the State of Virginia and the other 49 States to practice in the eye-care field. A minimum of 5 years specialized training in the examination of the eye for visual defects and the detection of ocular diseases is required prior to examination for this licensing.

In the vast majority of instances, we feel sure that the discrimination is unintentional and we earnestly request your cooperation in the hope that the problem will be eliminated. It would be greatly appreciated if you would review the referral forms currently in use and, where necessary, have them altered. The insertion of the words "eye doctor" or "eye specialist" in place of "ophthalmologist," "family physician" or "physician" will accomplish this.

In connection with this problem, we are enclosing a copy of an official opinion from the Attorney General of Virginia which holds that the discriminatory acts to which we refer are illegal.

It is our sincere hope that the situation, if it does exist, will be remedied locally for we certainly do not wish to seek relief through the courts. If the situation does not exist in your locality, we hope you will understand that notification of all school divisions is necessary in the event complaints are received in the future. Cordially,

J. W. DOSWELL, Administrative Director.

APRIL 30, 1964.

Hon. D. FRENCH SLAUGHTER, Jr.,
Member, House of Delegates,
Culpeper, Va.

MY DEAR MR. SLAUGHTER: This is in reply to your letter of February 22, 1964, in which you requested my opinion and advice concerning alleged discrimination by public health officials and employees and certain school nurses against optometrists. Such alleged discrimination is described in your letter as follows:

"I have been advised that on occasion public health officials or school nurses have been directing patients and schoolchildren to physicians instead of permitting them the free choice of a practitioner in the matter of examination of eyes and prescribing of glasses. I am told that on one occasion a school nurse told a class of children that they could not be excused from class to have their eyes examined by an optometrist but could be excused to have their eyes examined by a physician.

"I am also advised that in some localities the printed health forms given to children by school nurses to take home state that the child has a visual problem and his eyes must be examined only by a physician.'

Chapter 14 of title 54 of the Code regulates the practice of optometry and 54-368 thereof declares optometry to be a profession and defines optometrists as those persons who may "examine the human eye, to ascertain the presence of defects or abnormal conditions which can be corrected or relieved or the effects of which may be corrected or relieved by the use of lenses, prisms, or ocular exercises, or employ any subjective or objective mechanical means to determine the accommodative or refractive states of the human eye or range of power of vision of the human eye, or have in his possession testing appliances for the purpose of the measurement of the powers of vision, or diagnose any ocular refractive deficiency or deformity, visual or muscular anomaly of the human eye, or prescribe or adapt lenses, prisms, or ocular exercises for the correction or relief of the same."

Section 54-369 of the Code, in effect, declares that duly licensed physicians authorized to practice medicine under the laws of this State may also practice as optometrists.

An oculist or ophthalmologist is a duly licensed physician who specializes in the care of the eyes and whose practice of medicine and surgery particularly relates to the treatment of diseases of the eye. An optometrist is trained to recognize diseases of the eye but may not treat them. His primary function is to examine eyes for refractive error and to employ means to determine the need of lenses for the correction of defects of eyesight, and the increase of the power and range of vision. See 54-368, Code of Virginia. See, Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 486, 99 L. Ed. 563, 571 and 22 Ala. (2d) 939, 941. It is fundamental that public servants are bound to act impartially in matters pertaining to the administration of their duties. See, 43 AM. Jur., Public Officers, 261, p. 78. Accordingly, public officials and their employees may not show a preference by suggesting or directing a patient to one class of practitioner when two classes are licensed by the State to perform the same service.

To sum up, I agree with your conclusion that the patient, or his parent, should be free to choose an optometrist or a licensed physician for those defects for which an optometrist is licensed to correct or relieve.

With best wishes, I am

Sincerely yours,

ROBERT Y. DUTTON,
Attorney General.

FAIRFAX COUNTY SCHOOLS, FAIRFAX, VA.-VISION REPORT

Date

DEAR PARENT: The results of the routine vision screening at school show that your child may need an eye examination. We suggest that you discuss this with your family physician and get his advice about an examination by an eye specialist.

It is important that the teachers understand your child's individual needs concerning eye sight so that there can be proper directions for reading and close work. The school should have a report of the eye doctor's findings and recommendations. If your child is already under care, such report should also be sent to the school. The form below is for the convenience of your doctor. Please have it returned to school.

If you wish to discuss this further, the public health nurse will be glad to assist you. You may reach the nurse, by calling Telephone Time Principal or Director of Health and Physical Education

School

DEAR DOCTOR: The Snellen test in school showed a visual acuity (with/without) glasses of about 20/- for the right eye, and 20/- for the left eye. Symptoms observed:

Approximate grade level in reading

The following information is requested so that we may assist in providing an educational program suitable to the child's needs.

Harold Kennedy, M.D.
Director of Health

Child's Name

Eye Condition (Diagnosis)

Color Blind Test

Fusion

Muscle balance
Depth perception

Vision without glasses R 20/ -- L 20/ -- Vision with glasses R 20/
Rx Recommended R

L

Is there any general pathology evident in this patient?.

Recommendations:

Symptoms to watch for
Use of glasses: Constantly
Date of examination

Examiner

Routing

Close work only

L 20/

None

H.R. No.

P.E. Section

Mr. MAGEE. Now, the Commissioners cannot do three things, though. They cannot call this a learned profession. The Commissioners cannot forbid advertising, because the courts have held they can do it and the Commissioners cannot make them a learned profession. All other aspects of the bill which are asked for, the Commissioners can do.

Thank you very much, gentlemen.

Mr. SISK. Thank you very much, Mr. Magee, for your excellent presentation.

Mr. HORTON. Mr. Magee, why condone this corporate practice by optometrists?

it.

Mr. MAGEE. It is not a question of condoning it

Mr. HORTON. You indicate that we shouldn't do anything about

Mr. MAGEE. Well, the court of appeals has said they have a right to do it, sir, and it is a constitutional right because it is a calling, it