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Mr. MAHONEY. You could a few years ago. I think this has been changed.

Mr. HARSHA. There is some question of whether I would be a qualified lawyer under today's rules.

That is all I have.

Mr. WHITENER. Mr. Mahoney, we had some discussion earlier about the question of the liability of optometrists for what they might loosely call malpractice. I expressed the view to the committee that the same rule applies to optometrists as to the physician. In looking at this ALR annotation, in line with one of Mr. Sisk's questions, I note that the ALR annotation says that it has been held that optometrists have the duty to refer their patrons to a physician for pathological conditions which they realize exist or ought to recognize.

In an Alabama case, the court noted that an optometrist measured vision and prescribed corrective lenses but cannot use drugs or practice medicine or surgery with respect to eye defects or diseases so that diagnosis of the plaintiff's condition in this case is beyond his authority. However, the court added that an optometrist might have a duty to advise his patients to consult a physician if, in the performance of eye examination, it would be apparent to a skillful optometrist that such treatment was required.

So it seems that from this annotation, there is a requirement that any optometrist use that degree of skill which a skillful optometrist would be able to use. I think that answers our question about whether or not an optometrist can look at a patient who has an apparent pathological condition and just ignore it because of some personal whim and refuse to refer him to an ophthalmologist. I imagine that rule would apply here in the District.

Mr. MAHONEY. I am sure it would. The same rule would apply to a druggist who filled a prescription knowing that the quantity would be sufficient to kill someone. I think the analogy would be the same.

Mr. WHITENER. On the question Mr. Harsha was discussing with you,

I agree with him that it is up to counsel in the lawsuit to wave the flag of lack of credibility of the witness' statement or testimony, whether he be an expert or not. In most States, any layman can testify on the question of mental competence, not only of the parties to the lawsuit but as to witnesses. The fact that a ľayman gets on the stand and says, “I have known John Doe for 10 years and he is nutty as a fruitcake,” does not mean the jury has to accept the word of that witness. The attorney for the side damaged by his testimony might produce a witness who would testify that the first witness himself has just gotten out of a mental institution. So I do not believe there is much merit to arguing that once the court has found a man to be an expert, that means he is an expert in all fields of his profession or trade.

Mr. MAHONEY. The only concern that the bar association has is that by an interpretation of the act, an optometrist will be allowed to give opinion with reference to eye diseases. That is the only concern that it has. If you declare him a professional and you broaden the terminology of the definition of optometry," then a court would have to, perhaps, as I stated, listen to the testimony, accept it, and it would only be restricted--not restricted in a sense, but it would only be told to the jury that they give proper weight to the testimony based upon the qualifications. As of now, that testimony cannot be received.

Mr. WHITENER. The court is going to have to utilize its authority there. In many cases, I imagine if you are a trial lawyer, you have done it, I have done it. You would use a carpenter who probably only went to the second grade in school, have him come in and testify in his opinion as an expert what it would cost to patch a roof that had been damaged by a storm. You could get an automobile mechanic who had no formal education, and he is competent to testify as to reasonable cost of repairs.

Mr. MAHONEY. That is true. The carpenter would not be allowed to testify as to diseases of the eye. The court would not allow it.

Mr. WHITENER. The court would not allow it if we put it in the statute, if it is any court at all.

Mr. MAHONEY. That is our problem. If the statute declares that the optometrist is a professional and that includes within the scope of optometry is this definition which is in section 3, I can see

Mr. WHITENER. There is not going to be anything this committee will bring out, in my judgment, that will say that anybody is automatically an expert witness. The court is going to have to make a determination as to whether he is expert.

Mr. Sisk. Thank you, Mr. Mahoney. We appreciate your testimony.

Mr. MAHONEY. Thank you, Mr. Chairman.

Mr. Sisk. The next witness is Mr. Galen Rowe, Jr., president of the National Association of Optometrists and Opticians. If you will come up, Dr. Rowe, we shall be glad to hear your testimony.

STATEMENT OF GALEN E. ROWE, JR., PRESIDENT, NATIONAL

ASSOCIATION OF OPTOMETRISTS AND OPTICIANS

Dr. Rowe. Mr. Chairman, my name is Galen Rowe. I am an optometrist. I have been licensed to practice optometry in the State of Colorado since 1947. Presently my home is Cleveland, Ohio, where I am employed by the Cole National Corp., at 5777 Grant Avenue.

I am appearing before this committee on behalf of the National Association of Optometrists and Opticians, of which organization I am president. The National Association of Optometrists and Opticians is a national organization comprised of firms and companies engaged in the optical business throughout the United States. The association represents both owners and operators of these firms, most of whom are optometrists and opticians as well as the employees of these firms and companies. I might add that the organization represents 350 optical offices throughout the United States and about 2,000 employees. The National Association of Optometrists and Opticians is concerned about the introduction and the possible passage of this bill, just as it is concerned about the passage of similar bills in other States, because it has observed and become alarmed by increased attempts of private-interest groups to pass such legislation in a Stateby-State basis. These attempts, if successful, would create a creeping paralysis in the optical industry of its freedom of operation, as well as a substantial increase in costs to the consumer of optical services and goods.

Quite recently, Senator Hart of Michigan recognized the inherent dangers which exist in the practice of medical doctors dispensing and selling eyeglasses based upon their own prescriptions, and has introduced, subsequent to exhaustive examinations and investigations, legislation which would prevent such practices. It is anomalous then that certain optometric societies purportedly acting in "the public interest,” would attempt to promote the type of legislation which would permanently tie together the performance of optometric services and the sale of ophthalmic materials and, in effect, create a monopoly among optometrists alone. At this point we must establish that our purpose at this hearing is to reveal the true intent of this bill as opposed to the stated intent. The insistence upon relating the sale of the merchandise involved; namely, eyeglasses and accessories, to the services involved, is sufficient indication of the desire of the proponents to control the entire industry in the District of Columbia. The fact that extensive consideration and preparation has been given to the sections of this bill which relate to the restriction of competitive activity and very little consideration has been given to the harmful effects which the bill would create for the consumer in terms of convenience and cost, should clearly indicate the real intent of the proponents of this bill.

It has been stated that the problems which supposedly exist in the District of Columbia do not exist in the State of California-as the result of the passage of legislation similar to this bill. Now whether this has truly been accomplished certainly is questionable since if a person wishes to break the law he still may do so in California or anywhere else in the United States for that matter. But, this much is true, optometrists are not allowed to work for corporations or firms in California and advertising of optometric services and ophthalmic materials is prohibited in California. I cannot give you documentation for this fact, but if you will ask any member of the optical industry this question, "Which State in the United States has the highest cost of optometric service and eyeglasses?” the answer will invariably be, "California.” So, whereas one of the reasons given for the proposal of this bill is based upon a recent violation of the law in the District, and whereas the law, though differently written in California, can still be violated, one thing is certain; the consumer is paying a lot more money in California for the same services and materials than he is in the District of Columbia. Strangely enough, these materials are available in California at the same wholesale cost as they are anywhere else in the United States.

Presently, two opticians are being tried in court in the District of Columbia for violating the optometry law. The very fact that they are being tried indicates that a law does exist which gives the Optometric Board and the Board of Commissioners the authority and the means by which to regulate and police unlawful activities. Incidentally, there have been more stringent requirements established under the present District of Columbia optometric law as recently as 1951—by the Board of Commissioners, through their rulemaking powers.

This has already been indicated by other testimony.

Let me give another example which will point out that this is truly a self-seeking bill. I refer to page 14, line 19, whereby the estate or the widow of a deceased optometrist would be able to operate the

practice for only a 1-year period following the death of her optometrist husband. Under these circumstances, any optometrist working for the widow or the estate would be able to demand a salary which would leave no profit for the widow or the estate, and at the end of the period of 1 year, simply take over the practice, records, and goodwillbecause by law the widow or the estate would be forced to give it up. Now, if the widow or the estate decided that they did not wish to be "taken” in this manner, they could simply destroy the records and close the practice. This would mean that the former patients of deceased optometrists would no longer have available to them any of the past history of their eye care and would be forced to seek out a new practitioner and begin all over again.

The fact that consideration was not given to the consumer in this section reiterates, as I have stated before, that the intent behind this bill is to create favorable conditions for the exclusive benefit of optometric practitioners who have banded themselves together and are now attempting to monopolize the optical business in the District of Columbia.

Mr. Harsha. May I interrupt you there, Dr. Rowe? Dr. RowE. Yes, sir. Mr. HARSHA. What would you suggest be done in that section to alleviate this problem?

Dr. RowE. I feel definitely that the time period should be extended, Mr. Congressman, so that the estate or the widow would have sufficient opportunity to take someone in and keep him there, because if he simply has to wait a 1-year period, there is no reason for him to go in and pay anything for this practice when he only has to wait for a year and take it over without paying for it, because at that point the widow can no longer operate it.

Mr. Harsha. What would you suggest?

Dr. Rowe. I would say it should be at least 3 years. In other States, this varies from 2 to 5 years.

Mr. Sisk. Are you familiar with the Texas provision on this? Dr. Rowe. No, I am not, Mr. Congressman.

Mr. Sisk. I think if you were, you might be interested. Texas has this provision in their law which simply states that until the estate has been adjudicated and settled, which might be 6 months or 6 years. I only ask you for your comments, but since you are not familiar with it, go ahead.

Ďr. Rowe. As far as can be determined, the District of Columbia Optometric Society represents approximately 50 optometrists out of a total of 94 registered optometrists in the District. This was 1964 information, and information presented in previous testimony indicates that perhaps it is 33 members out of 74 registered optometrists. It has been previously stated that the membership of the American Optometric Association is somewhat over 13,000 members. In the 1964 issue of the Optometric Blue Book, published by the Professional Press in Chicago and on file with the Congressional Library, the total number of optometrists listed was 20,800. We might at this point ask why membership in the American Optometric Association and its affiliated State associations is so unattractive that from 30 to 50 percent of the practitioners do not choose to become members.

At this time, I would like to submit a memo which discusses in detail certain provisions of the proposed bill and points up the negative and harmful effects of these points-in contrast to the so-called benefit the public presentation. I have not discussed, nor do I intend to discuss, each of these sections in detail, but have attempted to point out a few which would establish our position that this bill is intended to serve the interest of the proponents only. If members of the committee have questions relating to any of the details of the proposed bill, I would be happy to attempt to answer them. In conclusion, my points are these:

(1) The current statutes are adequate and satisfactory for the regulation of the practice of optometry and opticianry in the District of Columbia;

(2) The changes as proposed in this bill would ultimately create an increased cost to the consumers;

(3) Passage of the bill would remove many well established and highly respected companies and firms and their employees from their businesses in the very short period of 90 days. This would leave a considerable number of employees of all types-optometrists, opticians and receptionists—in a position of being forced to seek new occupations and employment, because it would no longer be possible for them to obtain employment in their chosen fields. Their only recourse would be to attempt to go into business for themselves, and I am certain that many of them are not in the position to supply the needed capital to do this.

(4) The consumer would be denied convenience and freedom of choice in the selection of his eye care and his eyeglasses and would be forced to seek these services and materials from those who have chosen to protect themselves under the mantle of this restrictive legislation.

At this point, Mr. Chairman, I would like to make one statement that is not in my written statement, if I may.

Mr. Sisk. Go right ahead, Dr. Rowe.

Dr. Rowe. This has to do with the statement I heard this morning by the gentleman from Texas. I was rather appalled at what he said. He said that as he was leaving, he was called by several optometrists and was told that they did not know what was in the District bill, but if this bill would promote the upgrading of the profession, they were for it. On the surface, that would sound like a very good statement, and I would feel the same way. But I am concerned about the means, and there was no mention by these men to investigate the means by which you are going to do this. They were saying, in effect, use any means that you can in order to promote the passage of this bill and to upgrade ourselves.

I would like to make this suggestion, because there are means by which the two things can be accomplished. No. 1 upgrading a profession and, No. 2, promoting the benefit and the welfare of the public. I feel that if the time and the effort and the money which I see the American Optometric Association and its affiliate State associations throughout the United States spending on the promotion and the attempt to pass legislation and litigation which would elevate their position and put this same time, effort, and money into increased graduate and postgraduate educational facilities, into student procurement, into assistance for graduates of optometric colleges, they would then be able to accomplish the intentions which have been stated here, as the intent of this bill, and it would not be necessary

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