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And when we think of the children, in increasing numbers, who are helpless in submission to this procedure when their sight is at stake, we lose patience with everything except fidelity to duty, and the highest altruism in providing what nature requires in such delicate and vital situations.
Surely an optometrist should be absolutely independent of everything and everybody except his profession, and the people who confidently depend upon him to aid them in improving and preserving their sight. State Board of Optometry v. Sears, Roebuck & Co., 57 So. 2d 726 (Miss. 1952).
It can hardly be disputed that optometry has become a real science *** It has become one of the important professions * * State v. Brackman, 260 S.W. 2d 800 (1953, rev. on procedural grounds, 272 S.W. 2d 297).
Thus, by its very nature, the practice of optometry is subject to regulation for the protection of the public against ignorance and incapacity and deception and fraud, equally with the practice of ophthalmology and the other "learned professions” ***. The legislature recognizes optometry as a profession calling for the exercise of scientific skill * * * Abelson v. New Jersey State Board of Optometry, 5 N.J. 412, 75 A. 2d 867, 22 A.L.R. 2d 929 (1953).
NEW MEXICO The Legislature of New Mexico enacted section 67-7-13 (Optometry Act), supra, to protect its citizens against the evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes.
New Mexico Board of Examiners in Optometry v. Roberts, 370 P2d 811 (N.M. 1962), affirmed in 374 U.S. 424 (U.S. 1963).
*** it is specifically held that optometry is a profession under the statutes of Ohio * * * State v. Optical Co., 2 N.E. 2d 601 (Ohio, 1936).
* * * This regulation is on the same constitutional footing as the denial to corporations of the right to practice dentistry. Semler v. Dental Examiners, infra. It is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level, Williamson v. Lee Optical of Oklahoma, 348 Ù.S. 483 (1955).
The practice of optometry is undoubtedly one of the subdivisions of the practice of medicine, which have arisen in modern times by reason of the necessity for specializing. It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine. * * * One who consults an optometrist for ocular examination is entitled to the same undivided loyalty that he should receive from a physician. The fact that the optometrist is the employee of an optical concern whose main interest is the sale of optical goods tends to be a distracting influence which may adversely affect his loyalty to the interests of his patient.
While it is true that an optometrist is not permitted by law to treat diseases of the eye, nevertheless his training enables him to diagnose pathological conditions, and his duty requires him to refer the patient to a practitioner who is qualified to treat such conditions. The fact that he is trained to diagnose pathological conditions in itself indicates that the optometrist is not a mere skilled craftsman or mechanic. His failure to diagnose a pathological condition, with resultant delay or neglect in proper treatment thereof, might result in serious
impairment of a patient's eyesight, or even in blindness. State v. Standard Optical Co., 188 P. 2d 309 (Oreg., 1947).
PENNSYLVANIA All those who have had any experience with eyeglasses, and, after a certain age has been reached, that number embraces the vast majority of the educated citizens of the State, know that an improper fitting of frame to glasses can destroy the therapeutic value of the prescribed lenses. Glasses which do not obey the axis prescribed by the optometrist or which tilt at an inaccurate angle can do as much damage to the wearer as striking one's eye against a door. It must be assumed that the legislature had in mind these possibilities when it enacted legislation on the subject of eyeglasses. * * * To fit inferior lenses to an already weakened or bruised organ of sight is like supporting a cripple with papier mache crutches. Ullom v. Boehm, 142 A. 2d 19.
SOUTH CAROLINA Suffice it to say that the legislature of this State, as we have hereinbefore suggested, has given due recognition to the professional status of the practice of optometry, and, so far as the protection of professional rights is concerned, has placed it in a parity with other professions charged with important duties to the general public. Ezell v. Ritholz, 198 S.E. 419 (S.C. 1938).
The cases and legislative enactments involved further reveal that as to physicians, surgeons, and dentists advertising in the usual sense, and except for the professional card provided by our statute for the optometrist, is almost universally prohibited. “It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine.” Norwood v. Parenteau, 63 N.W. 2d 807, 813 (S.D. 1954).
The complainants are engaged in the practice of optometry in the city of Nashville and advertise in show-windows, by cars, neon signs, and so forth, various articles used in the practice of their profession. The section of the act herein assailed, the same being section 43, is the only section which affects them in their business or profession. It * * * expressly prohibits them from advertising eyeglasses, spectacles, ophthalmic lenses, or prisms, or frames or mountings, and so forth and confers upon the board the authority to suspend, or revoke any license of any holder for any alleged violation of the act. The entire act was held constitutional. Seawell v. Beeler, 287 S.W. 2d 54 (Tenn. 1956).
*** The statute (medical practice act) is the result of the legislature's effort, in the exercise of the police power, to preserve and protect the public health. There is implied an intent to take note of the organs of the body. The eye is the organ of vision. In the eye there are many parts, each performing a distinct function, but all designed by nature to produce the sense of sight.
It seems obvious that defects of vision may result from disease of the eye and other organs of the body. It is conceded and the optometrist must discern that the impairment which he seeks to remedy by lenses is not consequent upon disease. It follows that, while the eye operates upon mechanical principles, it cannot be treated as a mechanism alone. Its vitality as an element of the human body cannot be overlooked. Other organs of the body function upon mechanical principles; for example, the heart as a pump, the muscles as levers; but they, like the eye, are nevertheless organs of the human body, and each organ is, to a degree, interrelated with all others. Baker v. State, 240 S.W. 924 (Tex. 1921).
The advertising of the sale of glasses with optometrical service at a price certain is apt to be used as a lure and bait to the unwary and as a means of deception of those who are attracted by a seemingly low price without considering the degree of skill involved. It tends to promote unfair competition against those skilled in the profession. The "barker” and others who make their livelihood out of human gullibility cannot apply their talents to human eyesight without serious consequences. The legislature undoubtedly had these evils in mind when it adopted the optometrical act in its present form. Reasonable statutory regulation of advertising involving professional services is proper where, in the absence of such legislation, great evils will follow. Ritholz v. Commonwealth of Virginia, 35 S.E. 2d 210 (Va. 1945).
It is difficult to overestimate the importance of good sight. The use of lenses to improve vision is very great, and the prescribing of properly prepared glasses and the advice, in proper cases, that glasses are unnecessary are equally important. Incalculable harm may result from improper diagnosis and advice in connection with these matters, or from the use of glasses not correctly ground. State v. Superior Court, 135 Pac. 2d 834 (Wash. Sup. Ct. 1943).
Vision is essential to the highest usefulness of the individual. The eye is proverbially a delicate organ: It is closely connected with intellectual, nervous, and physical functions. Advice as to its care and prescribing for the correction of its defects by tests and examinations without the use of drugs is closely connected with health. Eisensmith, et al v. Buhl Optical Co., 178 S.E. 695 (W.Va. 1934).
We do not have to rest the constitutionality of the statute wholly upon the dentist case, supra.
The evidence in this case shows that the advertising used by the plaintiffs actually does operate to defraud the public. The customers of plaintiffs are mostly poor persons. The plaintiffs by their own testimony aim to advertise where their advertisements will reach“workers, foreigners and Negroes" particularly. They used the advertisement as a lure or bait, or as they call it "an inducement” to draw such persons to their stores. The general nature of their advertising is shown by the photostatic copy of an advertisement. Note the following in the photostat: “$12 value $3.88”; “at the low price of $3.88”?; “Get the glasses you need at a price you can afford”; “No extra costs”; “Free" "No extra charge.” This on its face is dishonest advertising. It manifestly aims and tends to mislead the public within the rule of Semler v. Oregon State Board, etc., supra, and Commonwealth v. Ferris, 305 Mass. 233, 235, 25 N.E. 2d 378, and is therefore fraudulent advertising. Ritholz v. Johnson, 17 N.W. 2d 590 (Wis. 1945).
THE OPTOMETRIC SOCIETY OF THE DISTRICT OF COLUMBIA,
Washington, D.C., March 22, 1966. Hon. B. F. SISK, House of Representatives, Washington, D.C.
DEAR MR. SISK: J. Spencer Dryden, M.D., in his testimony before the subcommittee this morning on the D.C. Optometry Act of 1966, made several statements which I cannot permit to go unchallenged.
A good deal of what he had to say concerned a North Carolina study and the allegation that a certain number of called-for referrals by optometrists to ophthalmologists were not made. May I point out that this was using a "correct referrals” criterion which was an ophthalmological criterion. It was not a joint criterion agreed upon by ophthalmologists and optometrists. To illustrate, the optometrist will frequently see a patient who has been to one, two, three or more ophthalmologists without assistance. In such instances a referral to still another ophthalmologist would often be completely useless, unless, of course, the optometrist detects the pathology which had not been previously diagnosed. Where jointly agreed upon criteria are used, as in the classic Orinda study of schoolchildren's vision conducted by the School of Optometry, University of California at Berkeley, and the School of Medicine, Stanford University, this kind of problem and question simply does not arise.
Dr. Dryden also referred to some 200-plus referrals as those persons referred by area optometrists to ophthalmologists in the 18-month period ending January 1, 1966. I thought the testimony on this point was quite clear. Those referrals were persons sent directly by the office of the society to private ophthalmologists or hospitals. They were, in other words, administrative referrals, not clinical referrals. Our figure has nothing whatsoever to do with the day-to-day, routine referrals by optometrists in their private offices to ophthalmologists in their private offices.
Also, Dr. Dryden referred to the number of practicing optometrists in the District and the number represented by the society. He used a figure of something like 35 percent membership. The correct figure for the District of Columbia is 56 percent membership. For the metropolitan area, with the Northern Virginia Society having 100 percent membership and the Central Maryland Optometric Society, having something like 65 percent membership, the overall percentage is approximately 70 percent for membership in local societies and thus membership in the American Optometric Association.
I might add that the District Society's 56 percent is a rather good figure for large metropolitan areas. Just recently a survey came across my desk which showed that Milwaukee, Wis., has a membership figure of only 39 percent. The point, of course, is that it is the large metropolitan areas of the country where the unethical practice of optometry most flourishes, and it is precisely those practitioners who cannot, because of the ethical question, be members of their respective professional organizations.
If there is additional information I might provide, I hope you will let me know. It is requested that this letter be made a part of the record of the hearings on H.R. 12937. With every best regard. Cordially,
HORACE W. WHITE, Jr.,
WASHINGTON, D.C., April 1, 1966. Hon. John DowDY, U.S. House of Representatives, Washington, D.C.
DEAR JOHN: At the conclusion of the hearings on the bill, H.R. 12937, on Wednesday, March 23, 1966, I was granted permission to submit proposed amendments to the subcommittee for consideration. After consulting with the people whom I represent, I am enclosing a copy of amendments which we feel should be made to this legislation.
I would appreciate it very much if you will see that these amendments are included in the printed hearings, and in the near future I will submit copies of these amendments to the other members of this subcommittee. With kindest personal regards to you, I am Sincerely,
WILLIAM N. MCLEOD, Jr.
PROPOSED AMENDMENTS TO THE BILL H.R. 12937
declared to be a profession, page 2, line 1, strike the words “Optometry is hereby
2. On page 2, strike lines 14 and through the word ''structures;'' in line 16. 3. On page 2, strike line 19 and through the word "general;” in line 20.
4. On page 2, line 21, after the word “lenses” strike the comma and insert the word "or".
5. On page 2, line 21, strike the words “or frames”. 6. On page 3, line 2, strike the words “or function” and insert "of vision”.
7. On page 3, line 3, after the word “eye” strike the comma and the following anguage: "including its associated structures”.
8. On page 7, strike the language in lines 18 through line 24 and on page 8, strike the language in lines 1 through line 16.
9. On page 8, line 25, and page 9, line 1, strike the following: profession, or professional title by or”.
10. On page 9, line 2, strike the word "professional”; 11. On page 9, line 5, strike the word "professional” and insert “optometric”. 12. On page 9, line 6, strike the word “professional” and insert "optometric”. 13. On page 9, strike lines 7 through 18. 14. On page 10, strike lines 18 through 22.
15. On page 11, strike lines 16 through 24 and on page 12, strike lines 1 through 6.
16. On page 12, strike lines 14 through 22.
17. On page 14, strike lines 19 through 25 and on page 15, strike lines 1 through line 9.
18. On page 15, line 19, insert a period after the word “optometry" and strike the rest of the language on page 15 and down to and including line 15 on page 16.
Renumber each section and subsection accordingly.
WASHINGTON (D.C.) PUBLIBHERS Association,
Washington, D.C., April 2, 1966. Hon. John Dowdy, Chairman, Subcommittee No. 4, District of Columbia Committee, House of Representatives, Washington, D.C. (Attention of Mr. James T. Clark, clerk, District of Columbia Committee, Old
House Office Building.)
DEAR MR. CHAIRMAN: We are enclosing herewith a statement of the Washington Publishers Association with respect to H.R. 12937 which is being considered by your subcommittee. We respectfully request that the enclosed statement be filed and incorporated in the record of the hearings with respect to this bill.
If additional copies of the enclosed statement are desired, we shall be pleased to supply them.
In view of the limited time that may be available before action taken by your subcommittee or by the full committee with regard to H.R. 12937, we have sent copies of this statement to Mr. McMillan and the other members of the full committee.
We appreciate this opportunity to make the views of the association a part of the official record. Respectfully submitted.
HENRY C. GRONKIEWICZ,
STATEMENT OF WASHINGTON PUBLISHERS ASSOCIATION WITH RESPECT TO
H.R. 12937 The Washington Publishers Association herewith respectfully submits its views in connection with the consideration of H.R. 12937 and related bills before the Subcommittee No. 4 of the House District Committee. It is requested that this statement be incorporated in and made a part of the written record with respect to the proposed legislation.
The Washington Publishers Association is an organization composed of Washington's three daily newspapers, the Evening Star, the Washington Daily News, and the Washington Post.
The newspapers of this community are vitally interested in the maintenance of high standards in connection with the rendering of eye care services to the public. We firmly believe that the public should be adequately protected against anyone providing eye care services who is not qualified to do so.
To the extent that there are abuses in the practice of optometry or in connection with the sale of optical products in the District of Columbia, which are not adequately protected against under existing law, we believe that the law should be strengthened and vigorously enforced.
H. R. 12937, however, appears to go beyond the limits of appropriate regulation of the practice of optometry in the public interest. It would, for example, unduly restrict the services traditionally provided by opticians, optical companies and others without regard to the nature and quality of the services performed or the qualifications and competence of the persons who perform such services.
We particularly oppose the provisions of H. R. 12937 prohibiting all advertisements by optometrists and any reference to prices of optical products in advertisements by opticians and others. We agree with the conclusion reached by the Commissioners of the District of Columbia that “prohibitions of this nature do not serve the best interests of the general public.” Letter from Hon. Walter N. Tobriner, President, Board of Commissioners, District of Columbia to Hon. John L. McMillan, chairman, Committee on the District of Columbia, dated March 18, 1966, page 9.
Initially, we note that all advertising in connection with the sale of optical products is subject to stringent requirements of existing law prohibiting advertising which is false or misleading. There is a statutory ban against "false, untrue or misleading” advertising in the District Code (sec. 1 of the act of May 29, 1916, 39 Stat. 165; sec. 42-21, District Code, 1961 ed.), and section 5 of the Federal Trade Commission Act declares unlawful “unfair methods of competition in com