Untitled Texas Attorney General Opinion

The Attorney’ General of Texas

JIM MATTOX Maxh 20. 1986

Attorney General

Supreme Court Building John W. Davis, O.D. Opinion No. JM-454

P. 0. BOX 12549 Chairman

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

Telecopier 5121475-0266

Suite C-240 agents by optometrists

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~onalsection 3.06(d)(5) of the

4824 Alberta Ave.. Suite 160 Medical Practice Act. This provision authorizes a licensed

El Paso. TX. 799052793 optometrist to administer certain drugs to patients pursuant to a

915/533.3464

standing delegaticn order issued by a physician. On reconsideration

of Attorney General Opinion MW-499, and on consideration of additional

p 1 Texas. Suite 700 authorities, we hue concluded that section 3.06(d)(5) need not be

.,ust~“, TX. 77002-3111 held unconstitutional.

713/2295886

Section 3.06(d)(5) of the Medical Practice Act, article 4495b,

V.T.C.S., deals wLt.h the administration by optometrists of topical

606 Broadway, Suite 312

Lubbock, TX. 794013479

ocular pharmaceutical agents, which are drugs applied to the eye to

80817476239 aid in examining it.

Section 3.06(3:)(S)reads in part:

43OQ N. Tenth, Suite B

McAIlen, TX. 78501-1685

5121882-4547 (d) This Act shall be so construed that:

. . . ,

200 Main Plaza. suite 400

San Antonio. TX. 782052797

512f225-4191

(5) (A) A duly licensed and qualified optme-

trist may administer topical ocular pharmaceutical

agents il the practice of optometry as provided by

An Equal Opportunity/ this sub,iivision. These pharmaceutical agents may

Affirmative Action Employer

not be u?!rdfor 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::ianlicensed to practice medicine in this

state; and

p. 2062

Dr. John W. Davis - Page 2 (JM-454)

(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 therzlpeuticpurposes.

(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 :.tdetermines 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

p. 2063

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~onMW-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~~semblingthe standard to which he would be

P

held accountable in a mapractice suit. See Rood v. Phillips, 554

S.W.2d 160 (Tex. 1977) (r~laintiffmust establish that physician has

used treatment which a re&onable and prudent physician would not use

@. 2064

Dr. John W. Davis - Page 4 (JM-454)

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 ,unlesshe 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,estionssubmitted 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, ltforwnin ~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.eform 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,

p. 2065

Dr. John W. Davis - Page 5 (JM-454)

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,tsthat 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 iandthe 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:heoffice; 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 therzlpeuticpurposes, or whether it is used for

therapeutic purposes in a particular case, are fact questions which

cannot be answered in the ,>pinionprocess.

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

p. 2066

Dr. John W. Davis - Page 6 (JM-454) I

duly licensed and qualified optometrist may

administer topicztlocular pharmaceutical agents in

the practice of optometry as provided by this

subdivision. (Erq~hasisadded).

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:.ngit to state that the optometrist may not

use a topical ocular pharnlaceuticalagent on a particular age group.

Of course, the issuing physician may so limit the use of the

pharmaceutical agents he nllmesin 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:sto 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:Lrcumstancesunder which a person

performing same :Ls to immediately communicate with

the physician cc~ncerningthe patient's condition

including the requirement of immediate notifica- ?

tion of the detegating physician of signs and

p. 2067

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~rovisionof 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:lationof 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:tonsupon 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 asihe has used prudent judgment in

the issuance or ,the continuance of the standing

delegation order,

The answer to this qulzstiondepends upon the nature of the "other

task" and other relevant facts, and therefore must be determined on a

p. 2068

Dr. John W. Davis - Page 8 (JM-454)

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 atphysician 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:~erof 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.

J

Very 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

p. 2069