Mr. WHITE. Yes, sir. You will find, I think, that we in Virginia have cooperated very closely together. That did not exist many, many years ago. But since the inception of this board-and incidentally, there is one optometrist on this board. We have two ophthalmologists, two opticians, and one optometrist on our board. I think since the inception of the board, with an optometrist on there, it has helped certainly I think so, from my own personal experience to cement the relations of the optometrist and the optician. I think there is a place for all, the optician as well as the optometrist. We do not wish to infringe on them in any way and as far as Virginia is concerned, we have not, and we certainly would not want them to do that to us.

1 think you will find that so far as the association in Virginia is concerned, it is very harmonious, far more so than ever before. I think it is a question of live and let live.

Mr. SISK. Fine.

I appreciate your statement very much, Mr. White, and as I say, in line with some of our earlier questions, both yesterday and this morning, dealing with what seems to be a problem in the minds of the medical society here, it seems to me from your statement that Virginia law does recognize optometrists along with physicians or ophthalmologists on an equal basis with reference to referral and with reference to prescriptions for contact lenses, and so on.

As I understand your statement, it does recognize the fact that they are an important part of the eye-care profession in the State of Virginia.

Mr. WHITE. Yes, sir.

May I add this? You will find in our law-of course, I read just a portion of it-you will find that we incorporated in our law-I had a part in the making of that, a very small one, incidentally. But in that we make a statement that we in Virginia as opticians cannot say that one is preferable to the other to make a refraction of the eyes. I cannot say the ophthalmologist is preferable to the optometrist. That is in our law. You will find that.

Mr. SISK. I do not wish to ask you to comment, and I do not want to put you on the spot, but I suppose you heard my discussion with the attorney for the local society this morning in reference to a letter which he read, and my interpretation of what the letter in essence said and what the attempt was of the administration of the Virginia law, to see that there be no discrimination in referrals. That was your interpretation, then, as I understand you, Mr. White? Mr. WHITE. I think you are right, sir.

Mr. SISK. Thank you, Mr. White.

No further questions. Thank you, gentlemen. We appreciate your appearance very much.

Mr. MILLER. May I say two things?

Mr. SISK. Yes.

Mr. MILLER. First, I would like to say if there are any questions about what the optical situation is in suburban Maryland, Mr. Frank Jones will be able to answer the questions. If there are any questions about contact lenses as the optician performs them in the District of Columbia, we have one here who can answer questions on that subject.

If there are no questions of them, the second thing is, we have some very strong objections against the bill as it is presently written.

We would be very happy, however, to have the opportunity first to review the suggested changes presented by the District of Columbia Medical Society, and we would be very happy to work with the committee on any amendments that might affect the welfare and the good of the dispensing opticians in the District. We would very much appreciate that opportunity as we appreciate this opportunity to appear before you.

Mr. SISK. Thank you.

Mr. HARSHA. Mr. Chairman, I would appreciate it if Mr. Miller would prepare for the committee any amendments that he thinks are necessary to this legislation and submit it for the record at a later date.

Mr. SISK. I join with my friend, Mr. Harsha, on that. I thought of suggesting that if you have specific amendments, please present them, as I do not believe that they were specifically included in your statement. We would like to have those. We will keep the record open for a few days and if you would like to prepare suggested amendments, I think it would be well to prepare those for us and submit them to us.

Mr. MILLER. We would be very happy to. We appreciate the offer.

Mr. SISK. Fine. Thank you.

Thank you very much, gentlemen. We appreciate your being here.

Mr. MILLER. Thank you, sir.

Mr. SISK. The next witness on the list is a representative of the District of Columbia Bar Association, Mr. John F. Mahoney, Jr., Esq., representing the District of Columbia Bar Association.

We will be very happy to hear from you at this time, Mr. Mahoney. STATEMENT OF JOHN F. MAHONEY, JR., ESQ., DISTRICT OF COLUMBIA BAR ASSOCIATION

Mr. MAHONEY. Mr. Chairman, members of the committee, I am John Mahoney, appearing on behalf of the District of Columbia Bar Association, which opposes two sections of the proposed bill: The first sentence of section 2 which declares optometry to be a profession, and also section 13(c) which requires the local courts to recognize an optometrist as an expert witness and receive his certificate of visual competence as evidence. I understand that the committee will revise that section.

Mr. HARSHA. May I interrupt you, Mr. Mahoney? I do not think you need to take your valuable time to elaborate on that one particular section. On expert testimony, I do not think that is going to be in the bill.

Mr. SISK. That definitely will be rewritten, at least if I have anything to say about it. That section will be rewritten. In fact, we already have new proposed language which, as far as I am concerned, we would be glad to have you look at. It will clarify what the intent I agreed, after examination of the bill's language, that it did not, I think, clearly show the intent, so we definitely propose to rewrite that section.

was.

What was the first objection you have?

60-677-66--15

Mr. MAHONEY. If I might be permitted to comment just briefly on section 13(c) in its present language. It does give a greater stature to optometrists than any other expert, including the physician, as it is now written, for even doctors are not allowed to submit medical reports and have them received as evidence, because that would effectively eliminate cross examination.

Mr. SISK. If I could again interrupt you, Mr. Mahoney, it would be my intention, and Mr. Harsha might want to comment on this, in our rewriting of this section, certainly my intent would be to recognize optometry, of course, as a profession and as being professionally competent to judge certain things with reference to the eye in line with those things which they are permitted to practice in the profession of optometry, but in no sense to, let us say, put an optometrist above or below an ophthalmologist or anyone else who professionally might be qualified to make a judgment.

As I say, we do already have suggested language. But once that language has been prepared, I would hope you would not find any particular objection from that standpoint.

Mr. MAHONEY. The bar association also joins its brothers in the medical profession in opposing the first sentence in section 2, which states that optometry shall be declared a profession, the reason being that in the case of Silver v. Lansburgh, 72 App. D.C. 77, which was decided by the U.S. Court of Appeals, District of Columbia Circuit in 1940 and discussed by Mr. Magee, held that optometry was a mechanical art as opposed to the learned professions and the distinction was easily stated by the then Chief Judge Groner.

Mr. SISK. Could I again interrupt you, Mr. Mahoney? That decision was based upon the present definition of optometry in the District of Columbia under the 1924 act, is that correct?

Mr. MAHONEY. That is correct.

The position of the appellants in that case, Mr. Chairman, was that the optometrists were members of a learned profession and it was based upon this contention that the court ruled.

If by a lesgislative act, the optometrists are now declared to be members of a profession, it would certainly have a substantial effect on the decision in that case.

Now it concerns the bar association because of the language also in section 2 of the definition of an optometrist-section 3, rather. The end of that section, which says that optometry includes the identification of any departure from the normal condition or function of the human eye, including its assorted structures.

If the Congress decides that optometry shall be declared a profession, the court must give meaning to the term "profession" and he must recognize an optometrist as an expert within his field. Now, the definition in section 3 which gives the optometrist a right to give opinion evidence on identification of any departure from the normal condition or function of the human eye would, under some interpretations, give an optometrist the right to give an opinion involving eye diseases. Now, this would be serious with respect to the bar association. There could be very serious and harmful consequences in the trial.

Now, as a practical example of that, I have the case to which Mr. Magee referred, American Chemical Corp. v. Sykes, 391 S.W. 2d. 643, a Tennessee case, in which an optometrist there, in his opinion, stated

that a loss of vision was related to an industrial action. Based upon that opinion, there was an industrial award which was later overturned by the court of appeals. So that by declaring the optometrist a profession or declaring the practice of optometry as a profession, the problem will result in the receiving evidence from the optometrist in court and the bar association is gravely concerned that the optometrist will, under some interpretations of this act, be allowed to give opinion evidence of the conditions and diseases of the eye. For this reason, Mr. Chairman, the bar association opposes section 2 of the act and feels that there is no reason, public policy consideration, or otherwise why this new label should attach to the practice of optometry or in any way change the law which has been announced in the Silver case. On behalf of the association, I would like to thank the chairman and members of the committee for an opportunity to state our position. Mr. SISK. Mr. Mahoney, I have really only one question. Are you aware that optometrists in many other jursidictions are considered to be competent to give evidence in courts and in other ways regarding the eye and the condition of the eye and so on?

Mr. MAHONEY. I would state that it would be of concern to the District of Columbia if an optometrist were able to give an opinion as to whether a particular eye disease had its causal relation in some incident or where a defendant is claiming to be libeled.

Mr. SISK. What I was referring to was within the realms of practice of optometry. My question went to whether or not you are aware that optometrists are recognized as being competent experts to testify with relation to the condition of eyes, within the practice of optometry? And certainly, there is no intent, I might say parenthetically, to do anything different under the act here in the District than what they are permitted to do now, for example, in California or in a number of other jurisdictions.

In other words, what I am trying to say is that I see no serious problem with reference to this at least, we have had none that I know of-and I was only curious as to what comment you might have as to why it might be any more serious or any different in the District of Columbia.

Mr. MAHONEY. The problem concerns the language used in the scope of optometry in the act when compared with section 2. Heretofore, if the optometrist were recognized as a skilled mechanical artisan and so stated in the Silver case, is now recognized as a professional man and then he is on the stand and testifies as to what his practice encompasses, and this practice encompasses what I have read, which includes opinions on departure from the normal condition or function of the human eye, which is a very broad terminology, it would seem to me that a court might very well allow him to give opinion evidence on conditions of the eye which would be beyond the scope of optometry by the definition as applied to section 2. We would have no concern if the optometrist limited his opinion to matters strictly within the science of optometry. But it is beyond that which creates the problem with the bar association.

Mr. SISK. Well, keeping in mind, of course, the intent of the act to upgrade optometry and to upgrade the care and protection of the eyes which I consider the most precious gift we have did the gentleman hear the testimony by Dr. Morgan of the University of California regarding the student requirements and the training of optometrists?

Mr. HARSHA. Would you or the bar association object, Mr. Mahoney, if the classification or designation of optometry as a profession were left in, but this last phrase at the top of page 3, under your definition of optometry, were stricken: "And the identification of any departure from the normal condition or function of the human eye, including its associated structures"? That I believe has been interpreted by some of the witnesses to include the nervous system, blood vessels, and brain and everything else that is associated with the eye in any degree. If that were stricken out, would you then have just as serious an objection to the bill?

Mr. MAHONEY. There is further language under that subsection 2 of section 3 which includes within the definition of optometry the scope and functions of the human eye in general, the determination of the scope and function of the human eye in general.

I would see no reason why the definition which was set forth in the case of Silver should be changed.

I do not feel that the mere striking of that last clause would meet the problem.

Mr. HARSHA. Let met ask you this: Are you familiar with the present definition of optometry under the existing law?

Mr. MAHONEY. As defined in the Silver opinion, under the existing law

Mr. HARSHA. Yes, under the existing District of Columbia law.

Mr. MAHONEY. I do not believe I am. I have the definitions as defined in the Silver case as compared with the proposed changes in the definitions here.

But in order to make my position clear, the bar association has no position with respect to any part of the act, except section 2 in section. 13(c). The only reason I brought up the definition in section 3 was because of its use in conjunction with section 2, or the fact that he is a professional. Then you would turn to, say, well, what does the profession encompass and you get the definition. I do not believe the bar association would have the right to define what it is or have any comment as to what exactly the profession of optometry includes, but only in the negative sense, that it should not include anything which could be interpreted as giving opinion evidence on diseases or conditions of the eye.

Mr. HARSHA. Well, I am inclined to agree with you on that, but I know there are a number of States that do classify optometry as a profession. I think they do it in Ohio, if I am not mistaken.

But what I am trying to get at is would there be any objection to that in itself as long as the balance of the definition absolutely excludes the diagnosis of diseases and treatment of eye diseases and things of that nature? Would there be any objection to it?

Mr. MAHONEY. There would still be an objection, for the reason that it would change the basis of the holding in the Silver case, which we feel there is no reason to change. The mechanical art is the same. The interpretation of an amended definition could lead some judges to conclude that opinions should be received which in some way affect conditions or diseases of the eye. The fact that the optometrist is now declared to be a professional is going to have considerable weight in the evidence to be received in the court.