Dr. MCCRARY. Because of other provisions in here, that an optometrist must practice under his own name

Mr. GRIDER. That is what I was thinking of.

Dr. MCCRARY. It would be my judgment that the door would say "Dr. Jones, successor to Dr. Brown."

Mr. GRIDER. You wouldn't need this provision in there to say that. Dr. MCCRARY. Sir?

Mr. GRIDER. He could do that without this part of the act in there. Dr. MCCRARY. There is probably some point of law involved here. Mr. GRIDER. This seems to be a little different from the way lawyers or physicians handle this situation. I was just wondering if there is a particular reason for it.

Mr. KоHм. May I answer that, sir?
Mr. GRIDER. Yes; I wish you would.

Mr. KоHN. The particular reason for it is this, that if an optometrist suddenly died, and if this provision were not in, and it needn't be in as such, it can be in the rules that State boards have made, the practice which this man had built up over the years might terminate immediately and be of absolutely no value. It might really constitute his whole estate, and this provision is put in to take care of a widow who is left in that condition and who then would be permitted not to exceed a year to have another optometrist continue that practice for her.

Mr. GRIDER. Would she pay him a salary?

Mr. KоHN. He could get the fees out of it in some way. There could be some arrangement made whereby the practice at least would continue in existence to permit it being disposed of as a portion of the deceased's estate.

Mr. GRIDER. How would she do it? Would she agree to split the fees with him or to pay him a salary?

Mr. KOHN. Probably to pay him a salary.

Mr. GRIDER. That would violate another section.

Mr. KOHN. That is why we put that in as an exception. That is the only exception that we have in the whole situation, and that is in the case of somebody, for example, temporarily suffering from a mental ailment. What becomes of his practice?

Mr. GRIDER. The thing that troubles me about it is that the optometrists are trying to be established as professional men with this act.

Mr. KоHN. That is right.

Mr. GRIDER. And this strikes me as a wholly unprofessional clause. Mr. KOHN. Well, it is questionable as to whether it is unprofessional. I would say that it is more charitable than unprofessional.

Mr. GRIDER. The patients would be going to Dr. Brown's office. Mr. KонN. Yes.

Mr. GRIDER. Because they liked Dr. Brown, and they would be treated by Dr. Jones, which flies in the teeth of this

Mr. KоHN. He has to establish himself as doing the work there. He may not practice under any name other than Dr. Jones. He has to have his own diplomas there, his own responsibility. Anything that he does, he is subject, either his license or his malpractice would be subject. It merely continues the practice. We don't stress that particularly. We simply want to take care of the widows, that is all

Mr. HARSHA. Could Dr. Jones buy this practice from Mrs. Brown? Mr. KонN. Oh, yes.

Mr. SISK. Would my colleague yield on this point? I think the principal idea developed here is to permit a practice which I think is generally permissible in the medical profession. I know, for example, a medical doctor, who happened to be my mother's doctor, who recently passed away. Another doctor came in and was using his office and was continuing to treat his patients because he had quite a heavy patient load, until such time as the situation could be worked out. In fact, after some 4 or 5 months, the office did change and a new group of physicians came in. The intent in this bill was for continuity of caring for a group of patients who would be left to some extent dangling, and certainly not to lower the professional standards or an effort to get over into this idea of the so-called corporate structure where they are hiring optometrists and operating on that type of basis.

Mr. WHITENER. If the gentleman will yield, if that is a good provision, why do you limit it to widows? It may be a dependent child who would be left by this optometrist with no widow. It may be a dependent mother, a dependent brother.

Mr. ŜISK. I think the gentleman's point is well taken. I simply wanted to explain what I understood to be the intent of this particular provision, which upon the passing of an ophthalmologist, a medical doctor, or an optometrist in a case such as that we are talking about, would preclude the continuity of the office and more or less would leave patients dangling who might be in the process of having eyeglasses fitted.

Mr. WHITENER. It seems to me that it is being charitable to do that for the widow; perhaps the administrator or the executor of the estate ought to be able to wind up a practice.

Mr. MCCRARY. It may well be that we should provide instead for the estate of the deceased optometrist, which perhaps would be a more comprehensive term.

Mr. Sisk. Mr. Chairman, I hope all members will complete their questioning. I would like, Mr. Chairman, before we adjourn, to determine the plans of these gentlemen. Dr. McCrary, you would be available at any time later on in case of questions, because you are located nearby; is that right?

Mr. MCCRARY. Yes, sir.

Mr. SISK. And you, Dr. Hoff, of course are here in the District. Dr. Morgan, you are from the University of California. I did have several questions, Mr. Chairman, that I did want to ask more for clarification purposes. I simply want to determine from those who might not be able to return, in the event that there were questions

that came up.

Mr. WHITENER. Is Mr. Kohn going to be here?

Mr. KOHN. I will be here at any time.

Mr. WHITENER. Why don't we ask these gentlemen to return later. I understand we will go ahead as scheduled and you gentlemen will be available. I did want to ask Mr. Kohn a couple of questions which are not so much on the merits of the bill, but on its incidental provisions. I noticed on page 19 that the bill provides that the testimony of an optometrist "licensed under this act relating to the practice of optometry as defined in this act shall be received at any trial or

hearing in the courts of the District of Columbia as qualified expert evidence and testimony in respect to the practice of optometry." Isn't that a rather unusual provision in a bill? Wouldn't that substitute the judgment of the Congress in a blanket way for the authority and the judgment of the presiding judge to determine whether or not, in fact, this man is an expert?

Mr. KOHN. It does not, sir, so far as optometry is concerned. A similar section is in several State statutes. In my own State of New York, we have that already. That has been in effect since 1946.

Mr. WHITENER. It is standard procedure in the trial practice everywhere as far as I know that the court, and the court only, determines whether or not a particular witness is a qualified expert witness. Mr. KOHN. The court may still determine that.

Mr. WHITENER. I don't see how it could here.

Mr. KоHN. The court need not accept the testimony or give credibility to the testimony.

Mr. WHITENER. That isn't what this bill says. It says, "shall be received."

Mr. KонN. Shall be received.

Mr. WHITENER. As qualified expert evidence and testimony. The court wouldn't have any authority whatever because "shall" doesn't mean but one thing. That means this is it, brother.

Mr. KоHN. You are right there. That might well read, "may," making it permissive.

Mr. WHITENER. If it reads "may" you don't need it.

Mr. KонN. We do in a way.

Mr. WHITENER. I don't know what its purpose is, but I know what the language is. The language is that if a man can walk into that courtroom and wave a license in the District of Columbia, he can go on a witness stand and testify as an expert on anything concerning optometry, even though the judge sitting there might not think he is qualified to do so at all. Suppose Dr. Morgan here went into the courts in California. If the lawyers didn't admit that he was an expert in his profession, he would have to tell them where he was educated, what practical experience he had, and then the attorneys would be permitted to cross-examine him further, notwithstanding his broad experience, about his specific experience in the limited area that the court is inquiring into, and then the judge would determine, after hearing all that, whether Dr. Morgan was an expert or not. Isn't that what you found, Doctor, if you have ever testified as an expert?

Mr. MORGAN. That is true in California.

Mr. WHITENER. What you are saying here is that he shall be accepted as an expert, "a qualified expert on testimony in respect to the practice of optometry.' I don't know about the details of it, but maybe a man has devoted his entire life to twisting frames, as Dr. McCrary mentioned awhile ago. But yet, this would make him an expert on anything relating to optometry.

As a lawyer, Mr. Kohn, do you think that would be a good provision?

Mr. KоHN. That is not the intent. The intent is not to impose upon the judge doing anything that would affect his judicial discretion or ability to conduct the trial in accordance with his judgment. We do have, however, situations, we did have situations where a judge

would say: "I just will not accept the optometrist because he is an optometrist, period."

Mr. WHITENER. Yes; but you don't want to go

Mr. KOHN. No matter how he is qualified.

Mr. WHITENER. A judge might very well decline to recognize a surgeon or a lawyer. For instance, we lawyers have a law license, but I dare say that there is not a one of us here who are lawyers who would say that we are qualified to give expert evidence as to what the law in our State is on every subject of the law.

Mr. KонN. That is true.

Mr. WHITENER. Some lawyers wouldn't know an antitrust case from a bucket of apples. There are others who are quite expert. Mr. KOHN. Well, perhaps the language is improperly drawn, but the intent of it is that merely because a man is an optometrist and even though he has qualifications, that simply because he is an optometrist that his testimony be rejected.

Mr. WHITENER. Your second part of that subject, section C, could very well be unconsitutitional in some types of actions, because it says that: "certificates of ocular or visual condition, acuity, and efficiency issued by any duly licensed optometrist under this act shall be accepted as qualified evidence of the ocular, visual condition, acuity, and efficiency of a person to whom such certificate shall relate in any trial or hearing in the courts of the District of Columbia and by any officer or employee of the government of the District of Columbia in the performance of his ditues."

Now, suppose that John Brown in 1967, after this became the law, if it did, was charged in a criminal case with negligent homicide with an automobile, and the main ground was that he had a limited driver's license which required him to wear glasses of a certain type, but he had gone down to the dime store and bought a pair that he thought were pretty good glasses, and this was one of the allegations of culpable negligence, criminal negligence. You don't think that this would hold water if the prosecuting attorney tried to offer a certificate against the defendant in a criminal case doing that?

Mr. KоHN. You are absolutely right, sir. The phrase here, "In any trial or hearing in the courts of the District of Columbia," should not have been in there, because you can't cross-examine the certificate.

Mr. WHITENER. That is right, and I think that if this ever came before any court that ever read the Constitution, they would say that it was unconstitutional insofar as it applied to a criminal case. Mr. KоHN. Agreed.

Mr. WHITENER. And it might well be true if it involved the revocation of a hacker's license or something which took from him a property right, such as the right to earn a living.

Mr. KOHN. Not necessarily, not necessarily, sir. You see, the situation that this seeks to remedy is a very practical one, not with respect to trials, because concededly you can't cross-examine him, as I said, for a certificate. But there are many, many instances where certificates need only be furnished, particularly in schools, for applications for jobs and things of that sort. Many of the departments, many of the schools, many of the officials in these departments and schools say, "We will accept the certificate of an ophthalmologist, but we will not accept the certificate of an optometrist," and that is the thing we seek remedy by that. That is the only purpose that is intended.

Mr. HARSHA. Would you yield?

Mr. WHITENER. Yes.

Mr. HARSHA. Concerning this first issue that the gentleman from North Carolina raised about qualifying as an expert, under this act we have already established that you have a grandfather clause, so that anybody now that has an optometric license or is an optometrist could present that license and be a qualified expert just as qualified under this act as Dr. Morgan.

Mr. KOHN. That might not be too good.

Mr. WHITENER. Now, Mr. Kohn, on page 9 of your section 7, subsection 19, there is the use of this language: "Any other unprofessional conduct."

Mr. KоHN. Yes, sir.

Mr. WHITENER. That is sort of indefinite language for a lawyer to cope with; isn't it?.

Mr. KоHN. "Or any other unprofessional conduct" would not be a cause for disciplinary proceedings, unless the other unprofessional conduct was described and prohibited in a rule or regulation. We merely, by that, indicate that the foregoing today may be and we consider are acts of unprofessional conduct.

Mr. WHITENER. Yes, but this applies, this section would authorize the withholding or the refusal to reissue a license of an optometrist to practice his profession.

Mr. KонN. Yes, sir.

Mr. WHITENER. Now for what reason "any other unprofessional conduct." Now if you want to protect your own profession, the profession of these gentlemen, do you think you ought to pitch a professional man into that pot of water and have him wondering just what could happen to his license? Don't you think there ought to be some restriction, any unprofessional conduct which may be defined in rules and regulations issued by the Commissioners or something of this kind? Mr. KOHN. That might be, or as the case in this instance holds, where the general term of unprofessional conduct has been attached, it has been supported and upheld because it is usually-not usuallyinvariably a part of a section that defines unprofessional acts, and therefore a guideline has been laid down. There is a framework. It isn't to be plucked out of the air. And the courts have held that this means an unprofessional conduct according to the consensus of the profession. That isn't only in optometry but also in medicine and in dentistry.

Mr. WHITENER. But the Commissioners under this bill can walk into Dr. McCrary's office any day they wanted to and say, "We are revoking your license," and he would say, "For what?" and they would say, "Well, for unprofessional conduct." He says, “Well, I want to have a hearing down here on this," and so he goes to a lawyer and the lawyer says, "Well, what did they charge you with, Doctor?" He says, "Well, they just said unprofessional conduct." You give the Commissioners authority to revoke that license, and here is a man that the only way he would ever know what he was charged with, I presume, would be to have a bill of particulars procedure, a discovery procedure.

He could then seek out some bureaucrat who could tell him what he is alleged to have done wrong. to have done wrong. Unprofessional conduct is not the same in the eyes of everybody. There are some real borderline propositions.