Case Information
*1 The Attorney’ General of Texas Maxh 20. 1986 JIM MATTOX
Attorney General John W. Davis, O.D. Opinion No. JM-454
Supreme Court Building Chairman P. 0. BOX 12549 Austin. TX. 78711. 2549 Texas Optometry Board Ret Clarification of HW-499 (1982) 512147525Ql 1300 E. Anderson Lane Use of topical ocular pharmaceutical Telex 910/874-1367 Suite C-240 agents by optometrists Telecopier 5121475-0266 Austin, Texas 707,52 714 Jackson, Suite 700 Dear Dr. Davis: Dallas, TX. 75202-4506 2141742-9944
You have requested reconsideration of Attorney General Opinion
MW-499 (1982) which found unconstitutj~onal section 3.06(d)(5) of the Medical Practice Act. This provision authorizes a licensed 4824 Alberta Ave.. Suite 160 optometrist to administer certain drugs to patients pursuant to a El Paso. TX. 799052793 915/533.3464 standing delegaticn order issued by a physician. On reconsideration
of Attorney General Opinion MW-499, and on consideration of additional authorities, we hue concluded that section 3.06(d)(5) need not be p 1 Texas. Suite 700 held unconstitutional. .,ust~“, TX. 77002-3111 713/2295886 Section 3.06(d)(5) of the Medical Practice Act, article 4495b, 606 Broadway, Suite 312 Lubbock, TX. 794013479 [80817476239] V.T.C.S., deals wLt.h the administration by optometrists of topical aid in examining it. ocular pharmaceutical agents, which are drugs applied to the eye to Section 3.06(3:)(S) reads in part: 43OQ N. Tenth, Suite B McAIlen, TX. 78501-1685 (d) This Act shall be so construed that: 5121882-4547 . . . , 200 Main Plaza. suite 400 San Antonio. TX. 782052797 (5) (A) A duly licensed and qualified optme- 512f225-4191 trist may administer topical ocular pharmaceutical
agents il the practice of optometry as provided by this sub,iivision. These pharmaceutical agents may An Equal Opportunity/ Affirmative Action Employer not be u?!rd for therapeutic purposes.
(B) 'Co be entitled to use topical ocular. pharnace>ltical agents in the practice of optometrr, an optometrist must possess a valid standing delegation order that: (i) :is issued to the optometrist by an area physi::ian licensed to practice medicine in this state; and
(ii) authorizes the use of the pharmaceutical agents author!.z;ed by this subdivision. (C) On request, an optometrist will be issued a standing delegation order described by Paragraph (B) of this su~bdivision unless the physician acting as a reasonable and prudent physician determines that (denial is within the scope of sound medical judgment as it pertains to opto- metry, or that it is not in the public interest, and the basis fxc denial shall be given to the requesting optometrist in writing if requested. It is necessary that the physician have knowledge of the request1r.g optometrist, and if not, then same shall be good cause for denial.
(D) A standing delegation order issued under this subdivision or a representation of the order will be prom1neni:l.y displayed in the office of the optometrist. The board will prescribe the form of the standing delegation order and the certificate or representaticln. of the order. The standing delegation order., as a minimum, will: (I) be in wc:lting, dated and signed by the physician;
(ii) specify the available topical ocular pharmaceutics:. agents, including but not limited to topical anesthetics and dilating agents, to be administered in the office; and (iii) specify that said agents shall not be used for therzlpeutic purposes.
(E) On the complaint of any person or on its own initiative, xhe board of medical examiners may cancel a standing delegation order issued under this section if :.t determines that the optometrist possessing the wcder has violated the standing delegation order or this section.
(F) Except 8s provided by Paragraph (E) of this subdivision, a standing delegation order issued under thi;s subdivision remains valid. as long as:
(1) the physician who issued the order is a resident of this state and is liceilsed to practice medicine in this state; (ii) no irrc~gularities are found on annual review; and
Dr. John W. Davis - Page 3 (JM-454)
(iii) the order is not canceled for good cause by either par:)'.
(G) A physician who has issued a standing delegation order in compliance with this sub- division is immune from liability in connection with acts performed pursuant to the standing delegation order so long as he has used prudent judgment in the issuance or the continuance of the standing delegation order.
(H) Nothing herein is intended to limit or expand the practice of optometry as defined by law. (Emphasis added).
Attorney General Opini~on MW-499 (1982) concluded that subsection 3.06(d)(5) of article 44951,!, V.T.C.S., was unconstitutional because it authorized physicians to asct as licensing agents for the state but lacked sufficient statutlzy standards to govern the physician's discretion. On reexamination, we conclude that section 3.06(d)(5) is not a licensing provision. Instead, it is comparable to other provisions of law whereby physicians may authorize non-physicians to administer certain drugs. See V.T.C.S. art. 4476-14, 992(e), 4(2) (agents or employees o:i physicians, dentists, podiatrists and /- veterinarians may possess dangerous drugs); V.T.C.S. art. 4476-15,
§§1.02(9), (24)(A), 3.01(e)(l) (agent or employee of dispenser of controlled substances may' 'possess such substances); V.T.C.S. art. 4495b, 53.06(d)(4) (administration of dangerous drugs in Department of Health programs to prevent or treat certain communicable diseases).
Even prior to the enactment of the present version of the Medical Practice Act, a physician could delegate medical acts to another person, without directly supervising his performance. Tatro v. State of Texas, 516 F. Supp. 968, 976 (N.D. Texas 1981). aff'd 703 F. 2d 823 (5th Cir. 1983) modified cn other grounds, 104 S.Ct. 3371 (1984); set Thompson v. Texas State Biard of Medical Examiners, 570 S.W.2d 123, 129-30 (Tex. Civ. App. -' Tyler 1978, writ ref'd n.r.e.). The nhvsician had to ascertajn that the nerson urovidina treatment was adequately qualified to do iso. 516 F. Supp. at 976; &e also Attorney General Opinion H-1295 (19713).
In our opinion, sectlon 3.06(d)(5) merely authorizes a physician to delegate certain medd.cal acts. The statute does not give a physician absolute discretion to issue the order to an optometrist. The physician must deny a request for a standing order if, "acting 8s a reasonable and prudent r,hysician" he determines that "sound medical judgment" or "the public interest" dictates.denial. Thus, a physician must exercise his judgment in granting or denying a standing order according to a standard r~~sembling the standard to which he would be held accountable in a mapractice suit. See Rood v. Phillips, 554 P S.W.2d 160 (Tex. 1977) (r~laintiff must establish that physician has
used treatment which a re&onable and prudent physician would not use
@. 2064 under similar circumstancc,s). The physician's failure to exercise prudent judgment in issuir,g or continuing a standing order subjects him to liability in conne:tion with acts performed pursuant to the standing order. V.T.C.S. art. 4495b, 53.06(d)(5)(G). Finally, he may not issue a standing order ,unless he has knowledge of the requesting optometrist. Id. 13.06(d)(S)(C). -
If section 3.06(d)(5) is constitutional and still in effect, you request an answer to the qc,estions submitted by Speaker Clayton in his request for an Attorney General Opinion dated March 5, 1982. EiS questions were directed at, determining whether the Board of Medical Examiners had authority t,> regulate delegations made under section 3.06(d)(S). We have summarized his questions and grouped closely related questions together.
He first inquired wh@:ther the Board of Medical Examiners might prescribe only the form ~>f the standing delegation order or also substantive requirements of delegations made under section 3.06(d)(5).
Section 2.09(a) of the! Medical Practices Act authorizes the board to make rules, regulations and bylaws not inconsistent with the Act to regulate the practice of medicine. Section 3.06(d)(5), however, limits the otherwise broad autho:rity of the Board of Medical Examiners to regulate the practice of medicine. See V.T.C.S. art. 4495b, 52.09(a); Attorney General Opinion MW-318 (1981). Its role in implement~g section 3.06(d)(S) is 1imit:e:d to prescribing the form of the order and cancelling it if the optonetrists have violated either the order or the statutory provision. See 53.06(d)(5)(D), (E). See generally State v. Jackson, 376 S.W.;,dm (Tex. 1964) (legislature may withdraw ‘from administrative agency a matter otherwise within its reaulatorv field); Railroad Comm&siba v. Fort Worth and D.C. Railway company; 161 S.W.2d 560 (Tex. Civ.-App. - Austin 1942, writ dism'd w.o.m.) (board may not enlarge its powers by its own orders).
Section 3.06(d)(5)(D) authorizes the board to "prescribe the form of the standing delegation csrder." (Emphasis added). Although "fz is not defined in the act, section 1.03(11) provides that it should have a meaning consistent %'1,th common law.
"Form" is generally regarded as the antithesis of "substance." See, e.g., Wilson v. Wagney, 211 S.W.2d 241 (Tex. Civ. App. - San Antonio 1948, writ ref'd n.r.e.); Gevurtz v. Myers, 500 P.2d 730 (Ore. Ct. App. 1972). See also P,pplication of Trico Electric Cooperative, *, 377 P.2d 309, 315 (Ariz. 1962) (form distinguished from content).
In our opinion, ltforwn in ~section 3.06(d)(S)(D), denotes struc- ture and is to bye distinguished from substance. We conclude that the board may prescribe only t.h.e form and not the substance of standing delegation orders. Authcrity over the substantive content of a standing delegation order rests with the individual physician. See V.T.C.S. art. 4495b. P1.0218); compare, e.g., 53.06(d)(l). Of cour6e, whether a particular administrative regulation deals with "form" or "substance" would have to ke determined on a case-by-case basis.
He next asked whether the board might limit the types of topical optical pharmaceutical agc!c,ts that could be included in a section 3.06(d)(5) delegation or prevent their administration to patients in a certain age group.
Sections 3.06(d)(5)(A) and (D) are relevant to this inquiry.
Subsection (A) reads as fol.l,ows:
A duly licensed and qualified optometrist may administer topical. ocular pharmaceutical agents in the practice of optometry as provided by this subdivision. These pharmaceutical agents may not be used for therapeutic purposes. (Emphasis added).
Subsection (D) reads in part:
The board will prescribe the form of the standing delegation order iand the certificate or represen- tation of the o,rder. The standing delegation order, as a mininum, will: . . . .
(ii) specify the available topical ocular pharmaceutical agents. including but not limited to topical anesthetics and dilating agents, to be xministered in l:he office; and (iii) specify that said agents shall not be used for therapeutic purposes. (Emphasis added).
Section 3.06(d)(S)(D)(N) explicitly permits physicians to specify any of the available topical ocular pharmaceutical agents and the board may not narrow their authority. Of course, individual physicians may decide to ILimit the pharmaceutical agents named in orders they issue, since their immunity from liability for acts performed pursuant to a standing delegation order depends upon their exercising prudent judgment in issuing or continuing the order. In addition, no pharmaceutkal agent may be used for "therapeutic purposes." See Webster's Flew International Dictionary (2d Ed. 1957) (therapeuticmeans "of or pertaining to the healing art;~ concerned with remedies for disksell; curative."). Whether a particular agent can be used only for therzlpeutic purposes, or whether it is used for therapeutic purposes in a particular case, are fact questions which cannot be answered in the ,>pinion process.
The board may not impose requirements on standing delegation orders pertaining to the patient's age. Section 3.06(d)(S)(A) provides that a I
duly licensed and qualified optometrist may administer topicztl ocular pharmaceutical agents in the practice of optometry as provided by this subdivision. (Erq~hasis added).
The statute does not refer to the patient's age. The board may not substantively limit a physician's authority to issue a standing delegation order by requir:.ng it to state that the optometrist may not use a topical ocular pharnlaceutical agent on a particular age group. Of course, the issuing physician may so limit the use of the pharmaceutical agents he nllmes in the order.
He also asked whether the board could require as a prerequisite to issuing a standing orCer that a doctor have authority to admit patients to an area hospital..
Section 3.06(d)(5)(B) provides that:
To be entitled to use topical ocular phar- maceutical agent]! in the practice of optometry, an optometrist must possess a valid standing delega- tion order that:
(I) is issued to the optometrist by an area physician licensed to practice medicine in this ? state . . . . -sphasis added).
Section 3.06(d)(S)(B)(i) refers to "an area physician" but that term is not defined in tne statute. The board could, pursuant to section 2.09(a) of the act., promulgate valid rules defining an "area physician." Conceivably, the requirement in question could be among these criteria. For example, a physician practicing in a distant locale might be deemed an "area physician" if he is authorized to admit patients to an "area" hospital: in this context, the use of this standard would appear to be permissible. On the other hand, if a physician would be deemed an "area physician" as a matter of law, i.e., because he lives antI practices in the "area," he could not be zented from issuing a standing order on the ground that he is not authorized to admit patieni:s to an area hospital.
He next asked whether the board could adopt a rule requiring the optometrist to inform the delegating physician of pathological con- ditions discovered during the optometric exam. The rule in question is subsection (b)(13) of rules proposed by the Board of Medical Examiners:
[The standing dcl.egation order shall] set forth any specialized I:Lrcumstances under which a person performing same :Ls to immediately communicate with the physician cc~ncerning the patient's condition including the requirement of immediate notifica- ? tion of the detegating physician of signs and
Dr. John W. Davis - Page 7 (JM-454)
symptoms of ocular disease which are vision threatening or which can permanently affect the sight of the patient and which require medical or surgical treatment to include, but not necessarily be limited to signs and symptoms of the following diseases or medC:al conditions . . . .
Under section 2.09(a) of the act, the board:
-Y make rules, regulations, and bylaws not inconsistent wit:;this Act as may be necessary fos the governing of its own proceedings, the performance of its duties, the regulation of the Practice of med!tcine in this state, and the enforcement of &is Act. (Emphasis added).
The subsection (b)(13), requirement may reasonably be charac- terized as "necessary for . . . the regulation of the practice of medicine in this state." We do not we believe the proposed regulation is inconsistent with any p~rovision of section 3.06(d)(5), or any other provision of the act. We therefore conclude that the regulation is not impermissible per se. Whether it is inconsistent with some specific statute or a regl:lation of the Texas Optometry Board would have to be determined on a case-by-case basis.
Our conclusion about the validity of subsection (b)(13) is not inconsistent with our previous determination that the board may not impose substantive limitar:tons upon a physician's authority to issue a standing delegation order. The proposed regulation does not impose such a limitation, but merely requires that an optometrist report certain information to the! physician under whose standing delegation order he is operating.
Ris last question asserts that a physician who reasonably issues a section 3.06(d)(5) delegation is immune from liability for the acts of an optometrist acting within the scope of the delegation. It then asks whether a physician xsy delegate other tasks to an optometrist under a traditional standlog order where the physician remains liable for the acts of the optomexist.
Section 3.06(d)(S)(G) provides that:
A physician who has issued a standing delegation order in compliance with this subdivision is immune from lir.bility in connection with acts performed pursuant to the standing delegation order so long asi he has used prudent judgment in the issuance or ,the continuance of the standing delegation order,
The answer to this qulzstion depends upon the nature of the "other task" and other relevant facts, and therefore must be determined on a case by case basis. See V.T.C.S. art. 4552-5.13(d) (employment of optometrist by physician); Attorney General Opinion W-318 (1081). however, made some general observations which might prove helpful:
The liability of at physician for the negligence of others is detersined bv examinina the urinciules of agency law. Jpargei v. Worley-Hospital, Inc., 547 S.W.2d 582 (Isex. 1977). The master is liable for the torts cf his servant cosnnitted in the course of his tm~ployment. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex. 1964). The master's vicarious liabili'tv for his emolovee's torts is based upon his right to control the-details of the work. Id. The supervising physician need not be the actual emplo:~er of the sewant in order to be vicariously liabte for his torts, so long as he has the. right to control the details of the work. Sparger v. Worley-Hospital, Inc., supra.
SUMMARY Section 3.06(d)(5) of article 4495b, V.T.C.S., is constitutional. The Board of Medical Examiners may regulate. on17 the form and not the substance of a standing delegation order issued to an optometrist pursuant to section 3.06(d)(S) of article 4495b. V.T.C.S. The delegating physician has authority to determine the substance of the order.
Very J truly yours A JIM MATTOX Attorney General of Texas JACK HIGHTOWER
First Assistant Attorney Geneera
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney ;aneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrisn~
Assistant Attorney General