Mr. HARSHA. Well, after all, if he spends enough time preparing himself educationally and in experience, and so forth, he might be entitled to be classified as a professional man, would he not?

Mr. MAHONEY. Well, in the sense that architects, engineers, and accountants are in that classification of professional men. But traditionally, the learned professions are law, medicine, and theology and that has developed a certain concept in the law as to the treatment of the lawyer and the professional man and the evidence which he gives. There is no problem in the sense that it might be stated that now, there would not be any problem of receiving testimony from an architect. He is not regarded in the traditional sense of the word as a professional, but nevertheless, he generally is. So there is opinion evidence received from architects in the same way it is received from engineers. But there is no problem in that connection, because their opinions are limited to their particular field, architecture.

Mr. HARSHA. I am sure the court would particularly limit the opinions of optometrists to their field and to the things which they are trained and experienced in. I do not see how we could very well give it some salad dressing that they cannot otherwise get just by some legislative fiat. But the mere classification as a professional man will, to a very nominal degree, I suppose, add weight to their testimony. But the real weight to their testimony would be brought out by the trial lawyers as to what their experience actually was, what their education was, their basic education and what extra methods they had employed to further their education. Then it would be up to the jury or the judge to determine, based on these qualifications, as to whether or not he was truly an expert. I do not think merely classifying him as a professional man would necessarily give his testimony an additional value over anybody else's.

Mr. MAHONEY. If I might comment on that statement, in the District of Columbia, a physician may give his opinion which might more properly be given by some specialist in a particular field. A general practitioner may give his opinion as to whether a rupture in particular disk was caused by an accident which should more properly be given by a neurologist or an orthopedist. The courts have said that the mere fact that he is a general practitioner would not restrict his testimony, but it would go to the weight which the jury would receive it for.

Heretofore, an optometrist would not be allowed, according to my information, to give opinions on whether a particular eye condition. were traceable to an incident. But if he is declared to be a professional, we may get an analogy that he may give the opinion, but his qualifications would then go to the weight which his opinions would be given by a jury.

Now, in many cases, the jurors will not be familiar with these subtleties or technicalities between what an optometrist says his field is and what an ophthalmologist says.

Mr. HARSHA. If you are defending the case, that is your problem, your burden, to bring those out.

Mr. MAHONEY. Sir?

Mr. HARSHA. This is your burden, if you are defending or prosecuting the case, whichever the case may be. If there is a difference, as surely there is, between an optometrist and an ophthalmologistthe mere fact that you call an optometrist a professional man, I do

not think is going to influence the jury. It is going to be up to you to bring out to the jury the fact that there is such a difference between the two men.

Mr. MAHONEY. We would rather have it be that an optometrist would not be permitted to give an opinion on conditions of the eye or diseases of the eye, rather than have him be allowed to give an opinion and then have an instruction to the jury as to the weight that the jurors could give to his opinion because of his lack of qualifi

cations.

Mr. HARSHA. Can a mechanic give an opinion?

Mr. MAHONEY. In the mechanical field.

Mr. HARSHA. What is the difference, then?

Mr. MAHONEY. Well, we submit that optometrists should not be giving opinions as to diseases and conditions of the eye.

Mr. HARSHA. Oh, I grant you that. But, I am not talking about that. But you just said you do not want an optometrist to give an opinion.

Mr. MAHONEY. An optometrist should give an opinion confined to his particular expertise.

Mr. HARSHA. I do not think he should give any opinion as to the diseases of the eye. But the mere fact that he is declared to be a professional man I do not think is going to influence the weight of his testimony in the eyes of the juror, or give under weight to his testimony when it can be brougnt out by opposing counsel just what his qualifications are as opposed to some other expert in that same field.

Well, this is a moot question.

Mr. SISK. Just pursuing that a little further, Mr. Mahoney, you raised certain questions with reference to the material in section 3. Now, I do not know how much of the earlier testimony you have heard, but there has been quite a bit of discussion here with reference to matters pertaining to people who go to an optometrist and what his responsibilities are. Now, let me ask you if, for example, you went to an optometrist for an eye examination. Do you feel, would you agree that the optometrist should refer you to an ophthalmologist or to a physician if a disease existed?

Mr. MAHONEY. Yes.

Mr. SISK. Well, do you feel that the optometrist should be held responsible for a failure to refer a case on occasions such as this?

Mr. MAHONEY. The answer to that would depend largely on the factual situation. If it were something which the optometrist in the exercise of reasonable caution and the knowledge in his own science should have discovered and failed to discover, then I feel that he would be negligent or responsible for not referring the patient, customer, to an ophthalmologist for treatment. But if it were something that were beyond his realm

Mr. SISK. If you say that, then, the optometrist would of necessity have to identify the condition. In other words, if the optometrist could not identify the condition, then there would be no responsibility to refer.

Mr. MAHONEY. That is correct, unless it were something so patent that it should have been seen.

Mr. SISK. This goes right back to the language in section 3, and I asked you earlier if you heard Dr. Morgan's testimony. The whole

point of raising and improving and increasing educational standards and the like in the field of optometry, that is the whole point and objective, as we said, of this bill. So to say he should refer, and I agree with you that he should, and that there should be a responsibility to refer, then of necessity, he has to identify the condition, does he not, in order to make a referral?

Mr. MAHONEY. The optometrist could only refer those cases which were obvious or patent to many within his sphere of knowledge. He would not, if he could not, with his own knowledge, know of the existence of a disease, then it would seem to me no obligation to refer. It would be analogous to a druggist who gets a wrong prescription.

Mr. SISK. The point I am making that I think we would agree on is that there is an obligation to refer, and I do not know how he could refer without the identification of some departure from a normal condition. Of course, the medical profession made quite a thing this morning of this obligation to refer. They even cited certain situations in North Carolina apparently attempting to indicate that maybe the optometrists there did not refer to the extent that they should. Well, are they not going to have to make determinations that there is some departure from normal condition to justify a referral in the first place?

I realize that neither one of us is a medical man, neither one of us is an optometrist. But just making a point here on the basis of the objection you raised to the definition of what the practice of optometry would amount to, it would seem to me that on the basis of all the testimony we have had during the past 3 days indicating the need to refer and the requirement and even obligation, as it has been stated many times, of an optometrist to refer, then he certainly has to have certain knowledge. And that knowledge would go to some departure from the normal condition of the eye or else there would be no justification or need for a referral. I think you will agree with me on that, would you not?

Mr. MAHONEY. Yes.

Mr. SISK. I thank you, Mr. Mahoney.
Mr. Whitener has come in.

Do you have any questions?

Mr. WHITENER. Not at this time.

Mr. HARSHA. I do not mean to belabor this point about classifying these men as professional men, Mr. Mahoney, but the requirement and the qualifications you must have before you can first be recognized as an optometrist are very comparable to those of the law profession. You have to have at least the equivalent of a high school education under this bill, then you have to have the equivalent of 2 years of preoptometric training in a college or specialized school of optometry. Then you have to have 4 years of college or the equivalent of training in the field of optometry. That is more than you have in the field of law. You only have 2 years of training in the law field, do you not? Mr. MAHONEY. You have to have a college education in practically all the States today and 3 or 4 years of law school.

Mr. HARSHA. I guess it is three. You cannot go in two unless you go all year around.

You can make it in 6 years?

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 layman 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 testi

mony.

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.