Appendix — Friedman v. Rogers

Supreme Court brief1979

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APPENDIX TILED

VOLUME IV_ |! JUN § 1978

IN THE — SS

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

No. 77-1163

E. RICHARD FRIEDMAN, O.D., et al.,

Appellants

VS.

N. J. ROGERS, O.D., et al.,

Appellees

No. 77-1164

N. J. ROGERS, O.D., et al.,

Appellants

VS.

E. RICHARD FRIEDMAN, OD., et al.,

Appellees

No. 77-1186

TEXAS OPTOMETRIC ASSOCIATION,

INC., et al.,

Appellants

VS.

N. J. ROGERS, O.D., et al.,

Appellees

Appeals From The United States District Court

For the Eastern District of Texas

No. 77-1163 Filed February 16, 1978

No. 77-1164 Filed February 16, 1978

No. 77-1186 Filed February 21, 1978

Probable Jurisdiction Noted April 17, 1978

-y-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-1163

No. 77-1164

No. 77-1186

Appeals from the United States

District Court for the Eastern District of Texas

INDEX TO VOLUME IV

Page

DEPOSITION OF DEAN CHESTER PHIEFFER. .......... A-281

DEPOSITION OF DR. NELSON WALDMAN ................. A-286

DIRECT INTERROGATORIES TO DR. LEE

TE RET AT TS ate Pe IE ROSIN ROE a ON A-314

CROSS INTERROGATORIES TO DR. LE

EREDAR Rie, Sanne ss \siitalaaddidiaiaidinimidaies A-320

ANSWERS TO DIRECT INTERROGATORIES BY

es Re I iit china adatieeihltibialiaiaindtitadiiaie A-331

ANSWERS TO CROSS INTERROGATORIES BY

IU, IEE: I a i A-343

AFFIDAVIT OF STANLEY BOYSEN .............ccccceeceeseeee: A-356

DEPOSITION OF DR. E. RICHARD FRIEDMAN ......... A-370

DEPOSITION OF DR. N.J. ROGERS WITH

EXHIBITS TAKEN JANUARY 13, 1976 ................0000. A-393

DEPOSITION OF DR. N.J. ROGERS TAKEN

I, I ceiiciesiinalniiel cena derneehh hacia chia iaiaiiiinaainie A-417

NOTATION TO MEMORANDUM OPINION AND

FRI PUPPET ssesiemmnsccenincisndesiencnatinlandetnhiccipeianstnnien A-427

A-281

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF DEAN CHESTER PHIEFFER

[44]

Q. And it is your testimony that the practices of

optometry and law are alike because the lawyer is

selling paper clips and the optometrist is dispensing

spectacles?

A. Because they both claim to be a profession.

Q. Is there any other likeness that would justify this

comparison other than the paper clip dispensed by

the lawyer?

A. Oh, I would think less in the law as there is in

medicine and dentistry, of course, in that medicine

and dentistry are primarily concerned, as are

optometry, with health care. I am not sure that

lawyers consider themselves to be primarily

concerned with health care.

Q. Well, you made the comparison of trying to compare

optometry with law or medicine.

A. No. I said the profession as a professionalism says

that the advertising or solicitation of patients is not

professionalism as said by lawyers. Therefore, if

they say what professionalism is, you are asking me

what is professionalism, I say we have that kind of

commonality.

Q. You would agree in optometry, as has been true

from the outset, there is a direct product associated

with the profession of optometry.

A. Not always, but a great deal of the time, yes.

©

A-282

Largely so, is there not?

A fair larger part of the time, and not always in

children. It is particularly not so.

And that associated with that product from

optometries inception in the 1920's.

I am sorry. Say that again.

Associated with that product since the inception of

optometry, whenever it was, has been advertising of

that commodity or product.

No. Optometry began around 1890 when the

apprentice and some ophthalmologists got into the

furor. The furor was over the fact the apprentice

was charging three dollars for an examination fee

and putting the emphasis upon the examining and

upon services and not upon materials. And

optometry has been since that time trying to move

into the professional sphere. Now, there has been a

great deal of problem in it so doing, but that has

been its goal.

* * *

[84]

Well then, I construe your answer to be that your

concern is not to provide these services at the lowest

possible cost.

I don’t know quite how one would do what you are

saying in terms of each individual considering his

own value. Your emphasis is upon material as I feel

my emphasis is upon services.

I am referring to the entire package, both of

services and materials, because that is the end

result.

;

Bary ’

> OP ©

A-283

I beg to differ with you. The end result as far as the

optometrist is concerned should be that

prescription which he writes.

Well, do you agree with me that most optometrists

in Texas dispense their own --

Yes.

And derive some economic benefit from that

dispensing?

Yes.

Whether it is in the form of aservice fee ora product

charge?

Yes.

And so in the end the patient is getting a bundle and

that bundle is mixed with service and product, is it

not!

Yes, but that doctor may -- and I guess again we

have got a wide variety of approaches to that

problem, that we would hope that doctor would

charge for his services according to how he values

himself, or what he considers his worth. and that he

will provide his materials essentially at cost, which

is what we try to teach our students, so that the

emphasis is not upon that material cost.

But upon the professional worth of the service?

Right.

And the doctor establishes in your mind that worth.

Well, I am sure you do the same. Every professional]

person does that same.

* * *

A-284 | A-285

[90] | A. Hehas a technical service fee, yes. He moves over to

a technical or technician level at that time.

© |

©

©

©

Well, of the 900 or so optometrists practicing in

Texas, you cannot name five percent who do not

dispense their own materials?

How many is five percent? Forty?

Forty-five.

That may be. I don’t know. I have not been around

the state to find out, but I would say in the next five

years you would find more and more of them.

The reason they do dispense, it is necessary for the

economics of their --

I challenge that statement.

You do not agree?

I do not agree.

What facts do you have to show that it is not --

There are men in the state now who are practicing

without dispensing, and more and more of them are

doing so each year.

Can you give me the names of as many as ten?

Yes, Dr. -- ten? No, I can’t.

x* * *

[94]

But the optometrist himself as an optician realizes a

gain from the dispensing of the product because of

the fitting fee that is attached.

*

*

x

> Oo > & >

A-286

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF DR. NELSON WALDMAN

[7]

Were you active in the legislative fight for the

passage of the 1969 Optometric Act?

Yes, sir.

Were the statements and reasoning that you have

just summarized conveyed to members of the House

and Senate?

Yes.

During the 1969 session?

Yes, they certainly were.

By whom?

By many members of the Texas Optometric

Association.

Generally speaking, do the members of the TOA act

as their own lobbyists?

Yes, they do.

As chairman of the Board of TOA at that time, were

you personally aware that the optometrists from the

State were communicating this information to the

members of the Legislature?

Yes, I was.

Did your association actively support the passage of

the bill as it finally passed?

A-287

. Yes, we did.

[39]

In your opinion does membership in TOA render,

generally speaking, a doctor more likely to

emphasize quality eye care rather than volume or

price?

. Yes.

Does membership in TOA in your opinion result ina

doctor being more free from controlled and outside

pressures?

Yes.

Thus more likely to enforce the provisions of Sectio

5.09 and 5.10? ,

Repeat that, please.

(Whereupon the last question was read by the

Court Reporter.)

Yes, I would say so.

MR. NIEMANN: I have no further questions.

MS. PRENGLER: I just have two or three.

EXAMINATION BY MS. PRENGLER:

Q. Dr. Waldman, earlier you testified that you knew of

many instances where optometrists had contacted

members of the Legislature and talked to them

about problems, for example, problems with price

advertising before the passage of the Statute in

1969. Do you remember the names of any of the

specific legislators? Can you give us an idea how

A-288

prevalent this was, whether it was _ isolated

instances?

No, it wasn’t isolated at all. As as a matter of fact, I

would say that members of the Texas Optometric

Association talked to probably every single one of

the legislators at that time, even the ones that they

knew were probably going to be opposed.

During the time that you were chairman of the

Texas Optometry Board, how many members were

on the Board who were not members of the Texas

Optometric Association?

Two.

* * *

[45]

Do you have any statistics upon which you can base

such an answer?

I don’t know that I have statistics; I have

impressions.

You said that a young optometrist graduating from

school could either join a club or he could join a

church or send out announcements or take other

steps so as to “get known.” What other steps would

he normally take to become known so that he can

attract patients?

Well, he might play golf or he might joina bowling

league. There are any number of things of this

nature that he might do.

Do those activities promete q.lity practice of

optometry?

No, they certainly don’t.

A-289

Joining the Optomists Club is not going to do

anything to advance the cause of the profession of

optometry, is it?

I don’t think that was your question. I thought your

question had to do with starting a practice.

My question is, if a young man has got to spend his

time working in the community and joining clubs,

playing golf, that’s not advancing the professional

practice of optometry, is it?

No, that’s true, because you must realize, Mr. Keith,

that at that point in a person’s career he has a great

deal of time.

The reason he has a great deal of time is that he

doesn’t have very many patients?

Right. He is not very well known at that point.

You don’t tell me that the optometrist is better off

because he is going to the Optomists Club meeting

rather than serve a patient whose visual needs --

I don’t think I said that. Did I say that?

That's certainly the implication. If he has got to go

to the Optomist Club, he can’t sit there and tend to

his patients, can he?

1 don’t think that I said that, did I? I would like to

have that -- would you repeat that for me.

I don’t recall your saying it. That’s a direct

implication of what you said.

I don’t think it’s an implication of any kind. Would

you please tell me how you arrive at that

implication?

©

A-290

I will ask the questions and you will answer them. If

you don’t want to answer them, just say so, the Court

can take that up. Just tell me how joining the

Optomists Club can foster or improve the

professional practice of optometry.

Mr. Keith, I didn’t say that. What I said to you, I

believe, was that a young man getting started in

practice, in order to have a practice, in order to have

patients, must make himself known. People are not

going to come to him if they don’t know him. J oining

the Optomists Club or joining any other club is a

means of getting himself known.

Whereas, if were allowed to advertise, that would

also be a means of communicating to the public the

fact of his presence, his so-called skill?

It most certainly would.

And that would be a means of becomi z better

known?

Yes, it would.

Yet that means, would it not, Dr. Waldman, would

challenge the status quo of the practitioners already

located and well known in the community?

I am not sure I understand your question.

Well, you are hypothetically an optometrist in a

community.

Right.

And are well established and thus, “well known.”

All right.

>

ie ae Me

A-291

A young qualified and competent man comes to

town. He is not well known. The moment that he

commences to advertise and attract patients, then

he is challenging your established position in that

community, is he not?

I don’t consider it that at all.

You said that if the optometrist advertises, that this

results in an increased cost to him. That’s true, is it

not?

I would think so.

Whatever money he spends on advertising would be

an increase in cost?

I would think so.

And that he must compensate for this either by

increasing his charge to the patient or by seeing

more patients so as to make up for that additional

cost, is that correct?

I would think so.

That’s what you testified to?

Yes, sir.

Now, a third event could occur, could it not, and that

is, he could reduce his margin of profit?

I suppose that’s a possibility.

And that would not result in any increased cost to

the patient, nor would it result in any increased

pressure on him to conduct this volume type

practice?

I don’t agree with that, Mr. Keith, because I think

that if aman were put in this position where he were

A-292

forced by his overhead, by his advertising cost to

reduce his “margin of profit,” the net income --

whatever you want to call it. If he were forced by

these pressures, then he would necessarily have to

see a great deal more people in order to make the

same living, and by virtue of the fact that he had to

see so many more people, he couldn’t possibly give

as much time to those that he sees.

Well, implicit in your statement, is it not, is the

proposition that he is entitled to this certain static

amount of living, and he’s going to get that either by

seeing more people or charging more money.

Well --

When in fact he can reduce that net earnings and

not have to do either one.

Human nature is very peculiar, Mr. Keith. In my

experience people don’t like to reduce their

standard of living.

Where do you professional men get the idea that you

have a right to a fixed income?

I didn’t say anything about professional people or

fixed income. I said that people don’t like to reduce

their standard of living regardless of who they are,

whether it’s the ditch digger or the president of the

United States. In my experience people don’t like to

reduce their standard of living, and they always

aspire to a greater standard of living rather than a

lesser one.

Are you suggesting to the Court that there is vice

inherent in seeing a large number of people?

No, sir.

>

a a oe

A-293

Are you suggesting to the Court that every cost

factor in an optometric practice that increases

should be passed on to the patient or else

compensated by increased volume?

Say that again, would you?

If the price of rent goes up or the price of frames

goes up or the price of laboratory work goes up, is

that an item that you necessarily feel should be

passed on to the patient?

I think eventually this is true in most anything in

our economy today.

Do you have a ground floor location in downtown

Houston?

Yes, I do.

On Main Street?

No.

On Fannin?

Yes.

Is your rent substantially greater than it might be if

you were up on one of the upper floors of a building?

Possibly.

Does that result in an increased cost to your patient

as compared to the cost that the patient would

experience in an upper floor office building?

I suppose that could be a factor.

What about the volume; does that affect the volume

of your practice in that you are accessible to and

visible to the patients?

>

A-294

I don’t know that it affects volume because there are

only so many hours in the day.

Why did you choose that location and why do you

remain there if it does not influence your volume?

We are considering not remaining there. We are

considering getting into a building some time soon.

How long have you been there?

We have been in this lovation since 1962.

Now, are there a number of practical methods that

can be employed to deliver eye care to members of

the public without necessarily increasing the cost,

such as more efficient operations, greater use of

para-professionals, the deployment of personnel in

a more effective way?

Yes. There are some people who do this very thing

and very effectively.

Normally those people would not as professional

optometrists dispense their own spectacles, would

they?

There are many who do not.

And many who believe that by not dispensing, they

can deliver quality eye care to a larger number of

people at a lower cost?

That’s what they believe, I am sure.

And such economies as that exist in a variety of

forms to a greater or lesser degree, is that correct?

I would think so.

Would you tell me what precise steps the TOA has

taken at any time you held any office to increase the

A-295

number of persons who could be served and reduce

the cost of that service insofar as it relates to eye

care in Texas?

Of course, the Texas Optometric Association has

been very active through the years in providing that

more people are served simply by virtue of the fact

that the Texas Optometric Association is

responsible for the establishment and, of course, the

support both financially, physically, morally and

many other ways of the College of Optometry at the

University of Houston.

Did you know that Dr. Rogers was alsoa substantial

contributor to that effort?

I know that Dr. Rogers was a contributor, yes.

Now, what else has the TOA done besides support

the formation and continued operation of the

college?

Of course, the College of Optometry creates many

many more optometrists in this State than we

normally might otherwise have, and if we have

thede more optometrists, then we are providing for

more people to be given service.

What have you done to reduce the cost to the

consumer or patient?

[ don’t know that there was any specific cost-cutting

idea involved.

You have dealt with these younger men who have

consulted you as they try to enter into a practice,

young men coming out of school that consult with

you about the ways and means of establishing a

practice.

>

orp OP Oo PY

A-296

I have had that happen frequently, yes.

And you have been a member of the various

societies from time to time within your profession?

Not from time to time. I have been and am a

member of the societies and associations, yes.

Would you tell the Court what position you take and

that your organizations take with respect to

suggested fees for various services performed?

Well, the position of the Texas Optometric

Association has been that fees should be charged for

services, and materials de-emphasized, the cost of

materials de-emphasized to the extent that many of

the practitioners charge on the basis of a fee for

service and materials at cost.

What do you say to the younger men in the

profession with respect to the fee that should be

charged for a normal eye examination?

I have never advised anyone what to charge.

Are there any recommended or suggested fees for

services promulgated by your society?

No.

Have these been discussed?

No.

Not at all?

Not in dollars, no.

There is no and has been no recommended or

minimum fee?

No, not to my knowledge ever.

A-297

That’s all I can ask -

Yes.

-- is what you have experienced. What is your

customary fee for an eye examination?

My basic fee is twenty-five dollars.

Do you do contact lens dispensing?

Yes.

What is your charge for the customary contact lens

examination and dispensing?

The customary fee is two hundred dollars, and

that’s an all-inclusive fee.

For hard contacts?

Yes.

What with respect to soft contacts?

The usual fee is three hundred dollars.

tok Ok

[60]

What about the lens to be manufactured to that

normal prescription?

I am not sure what the cost would be. I would think

probably something like this would be somewhere

in the neighborhood of ten dollars.

So the difference -- iet’s suppose that the lens cost

was ten dollars and the frame cost was eight.

Okay.

A.

A-298

That’s a total charge of eighteen dollars to you,

whereas the service attached to that commodity

would be a total of forty-five dollars, would it not?

Well, Mr. Keith, I consider it all service. You see, it’s

analogous in my thinking to a broken leg. If you

break your leg and you go to your orthopedist, he is

going to put a cast on your leg. Now, he is going to

charge you X number of dollars for the service that

you receive. He is not going to break it down into so

much for the cast and so much for the service. He is

going to charge you X number of dollars for the

service, and he is going to provide the cast. Now, as

far as I am concerned, this is the very same thing.

Doctor, if I was examined and those lens frames

were provided to me --

I think you can have them back. As a matter of fact,

you may need them.

Thank you. I don’t recall the charge, but my

memory is that it was forty-seven dollars. Then

that’s quite a difference to the seventy dollar charge

that you have indicated would be your fee.

You didn’t come to me, Mr. Keith.

That’s right. I went to Dr. Fahey on Orleans Street

in Beaumont. What explanation or justification is

there for the difference in the seventy dollar charge

that you would make and the forty-seven dollar

charge that Dr. Fahey of TSO makes?

I don’t have any idea about Dr. Fahey, and I can’t

answer for him. I don’t know him.

MS. PRENGLER: Are you basing or assuming it

was a forty-seven dollar charge? You are not testifying

at this time?

A-299

MR. KEITH: I believe it was. I know it wasn’t any

more than that.

©

o> o>

MS. PRENGLER: But you are not under oath.

MR. KEITH: I understand.

Assume that that was true. that it was forty-seven

dollars, and I believe that it was, but I could be

mistaken. Is there any fact or factor that would

render. your service thirty or forty percent more

valuable?

I don’t know. Perhaps the doctor you are referring

to, who I don’t know, doesn’t consider that his

services are worth any more than what he is

charging.

My question is, from the standpoint of the patient, is

there more value derived from you service than --

All I can tell you is this, Mr. Keith. I charge in my

office what I consider to be a fair fee for the service

provided, and I think it’s pretty obvious that the

people who come to me consider that we are

charging fair fees because we have been relatively

successful.

You would preserve also the right of Dr. Fahey to

charge a fair fee?

Of course.

Whatever that may be?

That’s his business.

But, now, from the standpoint of the patient is there

more value that he derives from the seventy dollar

charge than from the forty-seven dollar charge?

Q.

A.

MS. PRENGLER:

A-300

I can’t answer that, Mr. Keith. I don’t know

anything about the forty-seven dollar eit and

what it includes.

Well, it included a complete eye examination and

the dispensing of these glasses that I have worn a

year or two.

Yes, that’s in your opinion, and I don’t know of my

own opinion. I can’t have an opinion if I haven’t been

examined. If you would like tosend me to Dr. Fahey

to be examined and have him prescribe glasses for

me, perhaps I can answer that question for you.

Doctor, let’s suppose that I went to Dr. Fahey

because I couldn’t see or was having difficulty

seeing. He prescribed these glasses, and I played

tennis in them and flown in airplanes in them and

done everything that a man does, inside and out, in

these glasses, with perfect comfort and excellent

visual results. As a layman I don’t know of anything

else he could have provided. I have no physical or

health defects. I have been to my internist, so I have

got no blood pressure or diabetes or glaucoma, iritis

or anything else. What else could any competent

optometrist have done other than provide me aset of

glasses that allows me to see perfectly?

Are you in a position to enumerate for me all the

services that this doctor, whatever his name is,

rendered? I can’t answer that because I don’t know

what he did.

Well, he made a complete eye examination and

prescribed a set of glasses.

What do you call --

I am going to have to object to

your continued testimony.

Re a eat Re oo

” aa

A-301

THE WITNESS: You will have to describe to me

what you call a complete eye examination.

Q.

A.

Well, he didn’t give me any blood pressure test.

Let me stop you for a moment, if I may. I am not

trying te give you a bad time. I am trying to answer

your question.

I am perfectly used to having a bad time.

And I am not saying this facitiously in any way. If

you would send me to Dr. Fahey and if he examined

me and he examined me in a way that he considered

a complete, thorough examination --

Customary examination?

Whatever. And then you ask me this question, I

would feel qualified and competent to answer your

question; otherwise, I cannot. I cannot answer for

anybody else.

MS. PRENGLER: Before you start asking a

question, I am going to state my objection on the record

to your testifying as to what type of examination you got

unless we can get some sort of admissible and competent

testimony to the effect.

MR. KEITH: Well, I know what he did, but I can’t

relate it to the O.D. and the O.S.

Dr. Waldman, let us suppose that you performed

your usual, customary, thorough examination,

whatever that may include, and that another

practitioner whom we will identify hypothetically

for these purposes as Dr. Fahey, performs the same,

usual, thorough and customary examination; that

each of you arrives at a diagnosis. It may or may not

be the same, is that correct?

Oo -

-? PF ?

A-302

That’s correct.

Because yours is a profession and there is room for

judgment?

A great deal.

And there is no precisely accurate diagnosis?

Okay. .

Is that true?

Yes.

But each of you prescribes the same lens and frames

ground to the same prescription, and that the

prescriptions are delivered properly compounded,

centered and with the same quality materials. If one

charges as much as twenty dollars more than the

other charges to the patient, is there any reason --

and I am just asking you to assume that is true. Is

there any reason that you can give why, if it’s your

charge that is higher, why it should be or why the

patient should pay the additional charge?

The only answer that I can give to that question. Mr.

Keith, is that it would seem obvious to me that the

doctor charging the lesser fee would consider that

his judgment wasn’t as good, wasn’t worth as much.

All right. Now, from the patient’s standpoint what

benefit does he derive from the greater charge or

the person charging the greater fee?

I am not sure that I understand where you are now.

You charge seventy, let us say, and hypothetically

Dr. Fahey charges fifty for the same thing. What

benefit does the patient get?

“eel?

© >OoP o>

A-303

Wait a minute. You said for the same thing?

That’s correct.

I don’t agree that it’s the sam» thing.

What is different?

1 don’t know. Send me to Beaumont, or --

I asked you to assume a hypothetical examination,

the examination is the same.

I would have to conclude if everything were the

same, that unless -- I don’t know what. The fee

would probably have to be much the same if

everything were the same.

How can you justify the higher charge?

I don’t know anything about anybody else’s charges,

Mr. Keith. All I know is that my fees are what I

consider to be fair, and my patients consider them to

be fair, as well. What somebody elso does, I can’t

answer for.

By the same token, if a man charges less than you

do, one has the perfect right to do that, does he not?

Yes. Anyone has a perfect right just as lawyers have

a perfect right to charge for their services, and I

dare say that al! lawyers’ services don’t cost the

same thing. .

That has been my experience, as well.

a -. same sort of thing could be applied, I would

think.

MS. PRENGLER: You get what you pay for.

Is that what you are saying?

A-304

I think that’s the usually the case in our economy,

isn’t it?

And that the higher charge necessarily carries with

it a greater service?

I would think that it would carry a greater

likelihood.

How can you, other than by polemics, justify this so-

called fee attached to the dispensing of the lens

when that is the service performed by an optician

rather than an optometrist?

No, it’s not a service performed by an optician, Mr.

Keith, because, first of all, the prescription has to be

written, the lens has to be designed, the decision has

to be made about the, for example, height of the

segment, decentration, various other things that go

into the lens. The lens has to be evaluated when it is

finished. It has to be verified. There any many many

things that go into the services in providing the lens.

This twenty-five dollar charge does not include your

writing the prescription?

The twenty-five dollar charge includes the

examination itself up to the point of writing the

prescription.

Now, let us suppose that I was your patient and

wanted you to write my prescription, and I wanted

to take it elsewhere to have it filled. Do I have that

right?

You certainly do.

Then do you charge me additionally to write the

prescription?

Yes, I do.

>

o> 2 >

A-305

How much do you charge for that?

Generally five dollars.

So that I could take the prescription and leave, and I

would have paid you thirty dollars, is that correct?

That’s right.

And I would have gotten the examination, the

prescription written. You would have designed the

frame, you would have allowed for decentration,

allowed for the height, size of the segment?

All the information, all the pertinent information

would be on the prescription, yes.

And then I can take it to TSO or wherever I want to

take it and have it filled?

Yes.

And I don’t owe you any money?

That’s correct.

So, what are these other charges incidental to this

frame and lens service besides writing the

prescription?

Well, I told you, Mr. Keith, that I think I

enumerated a moment ago some of the other

services.

You did, and all those are related to writing the

prescription, are they not, decentration, size,

height?

No. You can’t get the decentration on something

like this unless you know the frame, and, also, under

the circumstances I would simply be giving you a

©

A-306

prescription and indicate if it were a bifocal, for

example, the type of bifocal that I would

recommend, and a pupilary distance.

After you had made the thorough examination that

I am sure you make, with your knowledge and skill,

how long does it take to write the prescription?

It all depends on how complicated it is. It doesn’t

generally take a long time, but it requires a great

deal of judgment.

I concur. If you took my glasses to write that

prescription, once you had made the examination, it

would take fifteen seconds, twenty seconds?

I don’t know.

Would it take that long?

Actually writing down numbers doesn’t take very

long, if that’s what you are getting at, but there’s a

great deal more involved than writing dewn the

numbers.

It’s the professional! judgment that is of value?

I would think so. You are a professional man, !

would think you would concur with that.

When you were on the Board and you said there was

this Investigating Committee, who were the

members of that Investigating Committee?

As I remember, Dr. Burton, Jack Burton was

chairman of that committee.

Who else was on it with him?

Dr. Cohen.

&

aaa

©

oO > © -

A-307

Three of you, Dr. Burton, Cohen and Waldman?

I wasn’t a member of the committee. As chairman I

was an ex-officio member of all committees.

Were both of those committee members TOA

members?

Yes.

When these investigators went around and you all

had these letters of reprimand and informal

conferences with the licensees who were in violation

of basic competency, did this include just -- did the

people who you found to be violating the basic

competency, were they exclusively non-TOA

members?

No.

Did they include TOA members?

Yes.

You are not suggesting that they were violating

basic competency because they were advertising?

No.

Or that they were under some volumetric patient

pressure?

I would think that that would be more likely to

happen, yes.

Well, were these TOA members under some volume

pressure?

No, I wouldn’t think they were.

Now, you said that the principal violation or the

A-308

first in order of numbers was in Section 10 of Basic

Competency, which relates to the peripheral vision.

As a practical matter, isn’t that about the simplest

and less time consuming?

Yes, exactly right.

It takes three seconds to do it?

Less. That was the great surprise.

What is your explanation?

I have none.

© > 2 > © >

Would you say that’s more related to human nature

than it is mode of practice?

>

Perhaps.

(Whereupon a short recess was had.)

MR. KEITH: I have no further questions. Thank

you.

MR. NIEMANN: I do.

FURTHER EXAMINATION BY MR. NIEMANN:

Q. Doctor, regarding the violations of the Basic

Competency Rule when you were chairman of the

Optometry Board, was the occurrence and severity

of violations more prevalent when the doctor was

under time and volume pressures?

A. Yes.

Q. Does your prescription-writing charge of five

dollars include a lens verification service by your

office, if and when the patient brings the glasses

back for verification?

A-309

Yes.

Is, indeed, that one of the purposes of the five dollar

charge?

Yes.

To encourage the patient to bring the lenses back

for verification?

Yes, it is.

Doctor, is the perfect examination and perfect

judgment in writing the prescription all for naught

if the lens is gound or fabricated incorrectly?

Yes, it is.

Does the five dollar charge, which includes lens

verification, encourage the patient to have the lens

verified by your office?

Yes.

Is the reason that he has already paid for it, and,

therefore, he doesn’t want to lose the benefit of

something for which he has already paid?

I would think so.

Do you explain to your patients the advisability and

the necessity of bringing the lens to your office for

verification?

Yes, I do.

Doctor, earlier when we were discussing the

dangers inherent from incorrectly ground

prescriptions, we concentrated mainly on

eyeglasses rather than contact lenses. Could you

briefly enumerate for us some of the physical health

A-310

dangers that can occur from improperly

manufactured or improperly fitted contact lenses?

Well, under these conditions there can be things like

abrasions of the cornea and irritations of the lids

that can be very unpleasant and very

uncomfortable and sometimes dangerous as well.

You mean there’s a risk of infection and permanent

damage from incorrectly --

Yes, there is always that possibility.

Is this accentuated when there is a de-emphasis on

follow-up care following the initial fitting of the

contact lenses?

I would think so.

Is this one of the reasons why contact lenses are

generally higher in price than eyeglasses?

The additional service required, the additional time

required is the reason, yes.

Now, when a doctor is under a time and volume

restraint, is there a tendency or is there pressure to

relegate this follow-up care and follow-up

examination to non-optometric personnel?

Often that’s true.

Is this one of the shortcuts or eliminations that can

occur and do occur where a doctor tries to increase

volume?

I suppose that’s possible. We don’t do this in our

office.

I am talking about from your experience as a Board

member, seeing violations of the Basic Competency

oe

A-311

Rule and other violations of good optometric care?

I would think so, Mr. Niemann.

Since the danger of permanent damage to the

eyeball and damage to the -- infection and irritation

are so serious in contact lens cases, could you briefly

outline for us the kind, nature and time involved of

follow-up care in contact lens cases?

Well, I routinely in my office, for example, see a

patient for examination. I have him back to

dispense the contact lenses and give him the

necessary instructions, and this takes usually an

additional hour. Routinely I see him in a week for an

evaluation, and routinely after that in two weeks

later, routinely after that in three months, and then

again at the end of six months. This is assuming that

there are no complications, no changes necessary,

that this is a perfectly -- this isa perfect type of case.

Otherwise, we see people as often as it is necessary

to see them to give them the protection and the

vision that they need.

In your judgment is it imperative that this follow-up

care be done by an optometrist?

Yes, I think it is imperative. I think it’s important. I

think it is, and that’s why I doit because I think that

the judgment involved is very important here.

Is it your belief that if there is sufficient time and

volume pressures, that the optometrist will be

tempted to relegate that type of responsibility toa

non-optometric personnel?

I think yes. I think that’s only part of it, though. I

think that if there are time pressures and volume

pressures, that he not only would be tempted to

relegate this to other personnel, but I think that

A-312

there might be some elimination of some of these

visits and some of the time.

's this one way, by the elimination of certain steps

and the relegation of follow-up care to non-

optometric personne!? Ave these ways in which

contact lens’ total prices can be reduced?

I suppose they could be.

About how many members are there in the student

body of the University of Houston School of

Optometry?

Currently there are, I believe -- let’s say currently

before the last graduation I believe there would be

somewhere between two hundred fifty and three

hundred students. That’s going to increase,

however, in September because they are going into

a new building that will accommodate more

students.

If the membership of TOA had been afraid of

competition, would they have actively supported

the creation of the school?

Mr. Niemann, not only was the membership of TOA

not afraid of competition, we have virtually

encouraged competition, encouraged young people.

We recruit for the schools. I was chairman of the

American Optometric Association’s Vocational

Guidance Committee for several years, and it was

my duty to recruit students over the nation to go to

the colleges of optometry throughout the nation,

and certainly if we were trying to stifle competition,

we wouldn’t be doing this sort of thing at all.

MR. NIEMANN: No more questions.

A-313

MS. PRENGLER: I only have one question.

FURTHER EXAMINATION BY MS. PRENGLER:

Q.

For the most part, would you say that the more time

that you spend with a patient and the higher degree

of skill that you feel the service you’re providing for

the patient requires, the higher your fee will be?

I am not sure that -- I think that I understand your

question. I am not absolutely sure, but what I had

been trying --

MR. KEITH: May I ask by that if you mean his fee

is tied to the level of skill and time that he devotes?

MS. PRENGLER: Right.

MR. KEITH: Then it would vary depending on

the patient?

MS. PRENGLER: Right.

THE WITNESS: I think that what I am trying to

say to you is that the fee is determined to a great

extent by the length of time that is spent, yes, simply

because there are so many hours in the day, and if I

could see four times as many patients in a given

time, it’s probably true that my fee would be less,

but it’s also true that the patients wouldn’t get the

time and attention and the care that they get under

the circumstances.

But your fees would vary from case to case with the

factor or time and skill playing an important role in

what the ultimate fee would be?

A. Yes.

Q. Okay. That’s all.

A-314

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

DR. N. JAY ROGERS §

VS. § CIVIL ACTION NO.

B-75-277-CA

DR. E. RICHARD §

FRIEDMAN, ET AL g

NOTICE TO TAKE DEPOSITIONS

BY WRITTEN INTERROGATORIES

Notice is hereby given that the Plaintiff will take the

deposition of Dr. Lee Benham, 6346 Waterman Street,

St. Louis, Missouri 63130 on April 26, 1976, by written

questions before Mr. Robert D. Perry, 703 Cranbrook

Drive, St. Louis, Missouri 63101. The questions are

attached.

MEHAFFY, WEBER, KEITH

& GONSOULIN

BY:

of Counsel!

1400 San Jacinto Building

Beaumont, Texas 77701

CERTIFICATE OF SERVICE

The above and foregoing instrument was delivered to

opposing counsel by U.S. Mail, Certified, return receipt

requested on the 16th day of April, 1976.

A-315

WRITTEN INTERROGATORIES

TO: Dr. Lee Benham, 6346 Waterman, St. Louis,

Missouri 63130

State your name, age and residence address.

By whom are you employed?

What is your occupation?

What is your educational background?

What is your employment background?

PP FP Ff PF

List any professional organizations or associations

of which you are a member.

7. List by title, name of publication, publisher, date,

place of publication, and co-authors each article or

paper which you have authored.

8. Have you participated in or conducted any studies

with respect to the disciplines of optometry,

opticianary, the dispensing of opthalmic supplies,

or the provision of optical goods and services?

9. Describe each of such studies in detail.

10. Have you written any papers, whether published or

unpublished, on the disciplines of optometry,

opticianary, the dispensing of opthalmic supplies,

or the provision of optometric goods and services?

11. If you have written any such papers, attach a copy of

each to this deposition.

12. If you have testified in any judicial proceedings,

please list: the style of the case, the court and the

party or agency who called you as a witness.

13.

14.

15.

16.

17.

18.

19.

A-316

(a) Upon the basis of your studies and

investigations, do you have an opinion as to whether

or not there is a correlation betweer commercial

advertising, or the lack thereof, and the retail price

of optometric goods and services?

(b) What is your opinion?

(c) What is the reason or basis of such opinion?

Is the use of a commercial trade name, such as

“Texas State Optical” a form of “commercial”

advertising?

(a) In your opinion, based upon your studies and

investigation, will there be a correlation between

the elimination of commercial trade names and the

price at which persons can obtain optical goods and

services at retail in Texas?

(b) What is your opinion?

(c) What is the reason or basis of such opinion?

From the vantage point of a professional economist,

what purpose does a trade name serve in the field of

optometric services and products?

What type of information, if any, does a trade name

communicate?

(a) In your opinion, wil! elimination of the use of a

trade name from the practice of optometry in Texas

effect the consumer of optometric goods and

services?

(b) In what way will the consumer be effected?

(c) Why?

(a) In your opinion, will elimination of the trade

20.

21.

22.

23.

A-317

name from the practice of optometry in Texas effect

the present users of trade names within optometry?

(b) In what way?

(c) Why?

In your opinion, will elimination of the trade name

from the practice of optometry in Texas effect the

practitioners of optometry who do not now use a

trade name?

(b) In what way?

(c) Why?

(a) In your opinion, will the state-enforced

separation of the optometrist from the opticianary

wherein he has traditionally practiced under a

trade name effect the consumer of optometric goods

and services in Texas?

(b) In what way?

(c) Why?

(a) In your opinion, will the state-enforced

separation of the optometrist from the opticianary

wherein he has traditionally practiced under a

trade name effect the present users of trade names?

(b) In what way?

(c) Why?

(a) In your opinion, will the state-enforced

separation of the optometrist from the opticianary

wherein he has traditionally practiced under a

trade name effect the practitioners of optometry

who do not now use a trade name?

(b) In what way?

24.

25.

26.

27.

A-318

(c) Why?

(a) Have your studied the activities of “professional

associations” within the field of optometry?

(b) Have you studied the activities of the American

Optometric Association (AOA) and the state

associations affiliated with it?

(c) Based upon your studies, what have the

associations done?

(a) Do you have an opinion of whether there is any

correlation between the provision of quality eye

care products and services and the use or not of a

commercial trade name?

(b) What is your opinion?

(c) What is the basis of your opinion?

As a professional economist who has studied and

reported upon the price and provision of optometric

goods and services, do you have an opinion as to the

overall consequences of the prohibition of the use of

trade names in the practice of omptometry in

Texas?

(b) What is that opinion?

(c) What is the basis of your opinion?

Are you familiar with or have you been in any way

associated with or employed by Texas State

Optical?

er

1400 San Jacinto Building

Beaumont, Texas 77701

A-319

MEHAFFY, WEBER, KEITH

& GONSOULIN

Attorneys for Plaintiff

By

Of Counsel

A-320

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE EASTERN DISTRICT OF

TEXAS

BEAUMONT DIVISION

DR. N. JAY ROGERS \(

VS. (CIVIL ACTION NO.

( B-75-277-CA

DR. RICHARD E. \

y(

FRIEDMAN, ET AL

CROSS INTERROGATORIES TO BE

PROPOUNDED TO DR. LEE BENHAM

TO: Dr. Lee Benham, 6346 Waterman, St. Louis,

Missouri 63130.

1. Dr. Benham, are you familiar with the Texas

Optometry statute which requires an optician to

obtain an advertising permit and to accurately

advertise prices in various categories of eyeware

that he or she provides?

2. Ifyou are not, would you please briefly examine the

enclosed copy of Article 4552, Section 5.10, attached

as Exhibit “A”, which deals with advertising

permits and which was enacted in 1969?

3. (a) In your opinion, is it beneficial for consumers to

be furnished with prices in all categories as

required by the Texas statute which has been

furnished to you?

(b) If your answer is no, state your reasons why.

4. (a) In your opinion, does disclosure of prices in

various categories better inform the consumer

ed

(b)

(a)

(b)

(a)

(b)

(a)

(b)

(a)

(b)

(a)

A-321

of possible price ranges of eyeware than if ozly

one price or one category were advertised?

If your answer is no, state your reasons why.

In your opinion, does disclosure of prices in the

statutory categories in media advertising

lessen the chance for “bait and switch”

advertising?

State your reasons for your answer.

In your opinion, does media advertising by

opticians tend to encourage the consumer to go

to the advertising optician first rather than the

optometrist or physician first, in seeking

eyecare?

If your answer is no, state your reasons why.

Generally speaking, does advertising increase

the overhead expenses of the optician,

optometrist, or physician who advertises?

If your answer is no, state your reasons why.

Generally speaking, does advertising by

opticians tend to require a higher volume of

sales of eyeglasses to justify advertising in

newspaper and television?

If your answer is no, state your reasons why.

In your opinion, if an optometrist is employed

by an opti or another optometrist who

advertises larly, is it more likely that his

employer would emphasize a high volume of

sales of eyeg!asses than if the optometrist was

employed by an optician or optometrist who did

not advertise.

10.

11.

12.

13.

14.

A-322

(b) State your reasons for your answer.

(a) In your opinion, if an optometrist is employed

by an opticin or another optometrist who

advertises regularly, is it more likely that his

employer would emphasize speed of processing

the sale of eyeware and/or the examination of

the patient than if the optometrist was

employed by an optician or optometrist who did

not advertise.

(b) Why?

(a) In your opinion, if an examining optometrist is

employed by an optician or optometrist who

advertises regularly under a trade name, and

the address of the examining optometrist and

the advertising optician or optometrist are the

same, are the examining optometrist’s patients

likely to come to him because of his personal

reputation for professional competence as

opposed to some other reason such as

advertising?

(b) State your reasons why.

Are your aware that Texas State Optical and Lee

Vision are the two largest retail optical supply

chains in Texas?

Are you aware that Texas State Opticai, although it

can advertise under the Texas statutes, advertises

in cities where it has offices, without ever

mentioning prices or reference to price?

Have you ever made a study of the effect of

advertising of eyeglasses with reference to price, as

compared to advertising of eyeglasses without

reference to price? If so, would you please attach

copies of such study or studies.

15.

16.

17.

18.

19.

20.

A-323

Have you ever made a study of the effect of

advertising on the quality of eyecare. . .such as the

effect of advertising on the quality of lenses,

accuracy of prescription grinding, and/or speed of

examinations by optometrists associated with or

employed by the optician or optometrist who

advertises? If so, please attach a copy of such study

or studies.

Could you give a brief explanation of why more

recent data that 1963 was not used in your 1972

article entitled “The Effect of Advertising on the

Price of Eyeglasses”?

In your article entitled “The Effect of Advertising

on the Price of Eyeglasses,” did you take into

account the general consumer price index

differences between the various states covered by

the samples, for example, the difference between

general consumer prices in Texas as compared to

the general consumer price index in New York?

Were the prices reported in “The Effect of

Advertising on the Price of Eyeglasses” adjusted to

account for these regional differences in price

indexes?

The conclusions reached in “The Effect of

Advertising on the Price of Eyeglasses” appear to

be heavily affected by the price samples obtained

from the North Carolina survey. On the basis of the

North Carolina samples, are eye examinations

performed by physicians generally more expensive

than eye examinations performed by optometrists

in the same locale?

(a) Did the fact that 55.3% of all persons sampled in

North Carolina obtained their eyeglasses from

a physician tend to increase the cost of

21.

23.

24.

25.

A-324

eyeglasses in the North Carolina samples as

compared to your findings in the other states

surveyed?

(b) If your answer is no, why not?

What are the “other laws [in North Carolina] which

would tend to raise prices independently of

advertising regulations”, which you referred to in

“The Effects of Advertising on the Price of

Eyeglasses”?

(a) In “The Effects of Advertising of the Price of

Eyeglasses”, you stated that “a few non-routine

items (treatment) may have been included in

the sample.” If this was the case, were the

North Carolina sample prices more susceptible

to being effected by these “non-routine” items

(treatment)” assuming only physicians were

legally permitted to administer “treatment” to

the eye?

(b) State your reasons for your answer.

Did the North Carolina data represent 42% of the

total “advertising prohibited” data in “The Effects

of Advertising on the Price of Eyeglasses”?

Did the state of North Carolina represent 16.6% of

the sample states which prohibited advertising in

the study referred to in question 24?

(a) If the North Carolina data were excluded from

your sample, wouldn’t the sample have the

effect of “suggesting” only about a 13% increase

in eyeglass costs rather than a 25% to 100%

increase as stated in Section IV of “The Effects

of Advertising on the Price of Eyeglasses”?

(b) If your answer is no, why?

¢aeeer

i Od as

26.

27.

29.

30.

A-325

(a) If the New York data were excluded from the

samples, would it significantly affect the

conclusions reached in “The Effects of

Advertising on the Price of Eyeglasses”?

(b) State your reasons why.

In the conclusion of “The Effects of Advertising on

the Price of Eyeglasses”, did you state: “Several

professors in economics and marketing at the

University of Chicago were asked whether they

thought the price of eyeglasses would increase or

decrease if advertising were prohibited. Of those

individuals polled, approximately 40% of the

economists and 100% of those in marketing

expected prices to be the same or lower if

advertising was prohibited.”

Do you believe each and every one of the marketing

professors you polled was wrong in their opinion

referred to above?

(a) Were there grant monies from one or more

public or private sources used in the research,

writing, and/o. publication of “The Effect of

Advertising on the Price of Eyeglasses”?

(b) If so, please name the source of those grant

monies and include any institutional or

governmental agency controlling,

administering, or approving of such grant or

grants?

(a) Please read the attached letter marked Exhibit

“B” and assume it to be a complaint made to the

Attorney General’s Office in Texas. In your

opinion, is this type of problem more likely to

occur when a person’s eyes are examined and

contact lenses prescribed by an optometrist

(b)

31. (a)

(b)

32. (a)

(b)

A-326

practicing under a trade name than by an

optometrist not practicing under a trade name?

If your answer is no, state your reason why.

In your opinion, is a patient more likely to know

the specific name of the individual optometrist

who treated him or her when that patient goes

to a self employed optometrist or when that

person goes to an optometrist practicing under

a trade name?

Please state your reasons.

You received a copy of these interrogatories

several days prior to the actual taking of this

deposition. Have you discussed either the

questions or possible answers with the plaintiff,

his agents, and/or his attorney?

If so, whom did you discuss it with?

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DOROTHY PRENGLER

Assistant Attorney General

s/s

RICHARD ARNETT

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

512/475-4721

Attorneys For Defendants In

Their Official Capacities

A-327

CERTIFICATE OF SERVICE

{omitted in printing)

EXHIBIT “A”

Section 5.10. Advertising by Dispensing

Opticians. (a) No person, firm or corporation shall

publish or display or cause or permit to be published or

displayed in any newspaper or by radio, television,

window display, poster, sign, billboard or any other

means or media any statement or advertisement

concerning ophthalmic lenses, frames, eyeglasses,

spectacles or parts thereof which is fraudulent,

deceitful or misleading, including statements or

advertisements of bait, discount, premiums, price, gifts

or any statements or advertisements of a similar nature,

import or meaning.

(b) No person, firm or corporation shall publish or

display or cause or permit to be published or displayed

in any newspaper, or by radio, television, window

display, poster, sign, billboard or any other means or

media, any statement or advertisement of or reference

to the price or prices of any eyeglasses, spectacles,

lenses, contact lenses or any other optical device or

materials or parts thereof requiring a prescription from

a licensed physician or optometrist unless such person,

firm or corporation complies with the provisions of the

Subsections (c}-{j) of this section.

(c) The person, firm or corporation shal! obtain from

the board an “Advertising Permit,” which permit shall

be granted to any person, firm or corporation which is

— in the business of a dispensing optician in

exas.

SNe ree ee eae ee NN ee ee Re es eae ee

A-328

(d) Such persen, firm or corporation shall after

receipt of such permit, but before beginning any such

advertising, file with the board a list of prices which

shall be charged for such eyeglasses, spectacles, lenses,

contact lenses or other optical devices or materials or

parts thereof in each and all of the following categories:

(1) single vision lenses;

(2) kryptok bifocal lenses;

(3) regular bifocal lenses;

(4) trifocal lenses;

(5) aphakic lenses;

(6) prism lenses;

(7) double segment bifocal lenses;

(8) subnormal vision lenses;

(9) contact lenses.

(e) No change may be made in any such price

advertisement until the change has been filed with the

board.

(f) Any advertisement or statement published or

displayed as above described which contains the price of

any of the categories shown above shall also contain the

prices of all other categories and all such items, and the

prices thereof, shall be published or displayed with

equal prominence. No advertisement which shows the

price of items listed in the categories shown above shall

contain any language which directly or indirectly

compares the prices so quoted with any other prices of

similar items. In the event an “Advertising Permit” is

issued to a dispensing optician there shall be displayed

A-329

prominently in each reception room and display room of

each office owned or operated by such dispensing

optician a complete current list of all prices on file with

the board as provided above. In showing the price of “all

other categories and all such items” as required by this

section, it shall be permissible to combine two or more

cate zories into one general category of “all other lenses”

and designate the price thereby of “up to §........ ” which

represents the highest price of any lenses included

within this combined (general) category. Should there

be a category in which two or more price differentials

exist, it shall be permissible for the category to have a

single listing in the advertisement with the lowest and

the highest price in the category designated.

(g) In the event the dispensing optician owns more

than one office, the prices for all such eyeglasses,

spectacles, lenses, contact lenses or other optical devices

or materials or parts thereof in the same category shall

be the same in all offices located within the geographical

limits of a county or a city regardless of the name under

which such dispensing optician operates such offices.

(h) All such eyeglasses, spectacles, lenses, contact

lenses, or other optical devices or materials or parts

thereof must conform to standards of quality as

promulgated by the American Standards Association,

Inc., and commonly known as Z80.1-1964 standards.

(Continued on Page 45)

EXHIBIT “B”

April 29, 1967

To Whom it May Concern:

Recently I purchased a pair of contact lenses for my

son, Morris, at Texas State Optical Company. It was not

known to us who actually fitted the lenses, therefore

A-330

when Morris experienced a painful condition in his eyes,

as a result of wearing these lenses, we did not know who

to call, since no one person’s name had been made

available to us. This painful condition became apparent

after regular office hours, and since it grew steadily

more painful, we found it necessary to call upon a local

doctor in private professional practice, who up to this

time was not known to us.

It is our considered opinion that a doctor in private

professional practice, whose name and reputation is

known to his patients, and to whom one can turn in acase

of emergency, is better qualified to serve any and all

persons who seek the benefit of proper professional

vision care.

Very truly yours,

s/s

Archie Ray Kelly

3028 Golfing Green

Farmers Branch, Texas

eee e—eSV_eeeeeeeeeee

A-331

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF LEE KENNETH BENHAM

* * *

DIRECT INTERROGATORIES

TO THE FIRST DIRECT INTERROGATORY HE

SAYS:

Lee Kenneth Benham, age thirty-five. I live at 6346

Waterman Avenue, St. Louis, Missouri.

TO THE SECOND DIRECT INTERROGATORY HE

SAYS:

Washington University, in St. Louis.

TO THE THIRD DIRECT INTERROGATORY HE

SAYS:

I am an economist.

TO THE FOURTH DIRECT INTERROGATORY HE

SAYS:

My undergraduate training was in mathematics at

Knox College in Galesburg, Illinois. My graduate

training was in economics at Stanford University. |

received a Ph.D. in economics at Stanford.

TO THE FIFTH DIRECT INTERROGATORY HE

SAYS:

I was instructor and assistant professor of economics

in the Graduate School of Business at the University of

Chicago from 1967 until 1974. I have been an associate

professor of economics in the Department of Economics

and an associate professor of economics in preventive

medicine in the Medical School at Washington

University from 1974 until the present. In addition to

my academic appointments, I have done consulting for

the Department of Health, Education and Welfare

A-332

concerning proposed national health care programs,

and the American Bar Association concerning the

supply of and demand for lawyers and the impact of

proposed changes in the educational requirements for

lawyers.

TO THE SIXTH INTERROGATORY HE SAYS:

I belong to the American Economics Association and

the Health Economics Research Organization.

TO THE SEVENTH INTERROGATORY HE SAYS:

“Migration, Location and Remuneration of Medical

Personnel; Physicians and Dentists,” Review of

Economics and Statistics (August, 1968), with Alex

Maurizi and Melvin Reder.

“Factors Affecting the Relationship Between

Family Income and Medical Care Consumption,” ir.

“Empirical Studies in Health Economics, edited by

Herbert Klarman (Baltimore; The Johns Hopkins

Press, 1970), with Ron Andersen.

Readings in Labor Market Analysis,(New York:

Holt, Rinehart & Winston, 1971), coeditor.

“The Labor Market for Registered Nurses; A Three

Equation Model,” The Review of Economics and

Statistics (August, 1971).

“The Effect of Advertising on the Price of

Eyeglasses,” The Journal of Law and Economics

(October, 1972).

“The Benefits of Women’s Education Within

Marriage,” Journal of Political Economy, vol. 82,

no. 2, Part II, March/April 1974. Reprinted in

Economics of the Family: Marriage, Children and

Human Capital, edited by Theodore W. Schultz

(The University of Chicago Press, 1974).

ae ian tied

A-333

“Health, Hours, and Wages,” The Economics of

Health and Medical Care, edited by Mark Perlman

(London: Macmillan, 1974), with Michael

Grossman.

“Women’s Economic Returns from College,

Graduate Education, and Nurses’ Training

Through Earnings and Marriage,” in Ser,

Discrimination and the Division of Labor, edited by

Cynthia Lloyd (Columbia University Press, 1975).

“Price Structure and Professional Control of

Information,” Journal of Law and Economics

(October, 1975) with Alexandra Benham.

“The Impact of Incremental Medical Services on

Health Status 1963-1970,” in Equity in Health

Services, edited by Ron Andersen (Ballinger, 1975)

with Alexandra Benham.

“Utilization of Physician Services Across Income

Groups 1963-1970,” in Equity in Health Services,

edited by Ron Andersen (Ballinger, 1975), with

Alexandra Benham.

TO THE EIGHTH INTERROGATORY HE SAYS:

Yes, I have.

TO THE NINTH INTERROGATORY HE SAYS:

In the first study, data on eyegiass and eye

examination prices were obtained from a 1963 survey of

a national sample of individuals. The prices paid for

these services could be associated with the state of

purchase. I was interested in comparing the prices paid

by consumers in states with restrictions on advertising

and in states without such restrictions. I became

interested in this question because I grew up in Texas

and was accustomed to the level of eyeglass prices there.

When I moved to California, I was surprised at the much

A-334

higher prices for eyeglasses I observed there.

In the second study, done jointly with Alexandra

Benham, I helped develop the questionnaire and code

the data from a national sample of 10,000 individuals for

1970. In this study I was interested in pursuing the

question of the effects of limiting information available

to consumers on the prices consumers pay. Once again

the prices consumers paid for eyeglasses could be

associated with state of purchase. The states were

classified according to several indices providing various

measures of the restrictions placed on the availability of

information about eye care providers in the state.

TO THE TENTH INTERROGATORY HE SAYS:

Yes. I have written two papers, one jointly with

Alexandra Benham.

TO THE ELEVENTH INTERROGATORY HE

SAYS:

The papers have been published in the Journal of Law

and Economics. Copies are attached.

TO THE TWELFTH INTERROGATORY HE SAYS:

I testified in the case of Horner-Rausch Optical

Company versus the Attorney General of Tennessee, in

the First Circuit Court for Davidson County, Tennessee,

concerning the restrictions placed on advertising of

eyeglasses in that state. I was called as a witness by

Horner-Rausch. I also testified in the case of Eckerd

Optical Centers, Inc., versus the Florida State Board of

Dispensing Opticians, in the Circuit Court of the Second

Judicial Circuit, in and for Leon County, Florida. This

case was also concerned with restrictions on

information to consumers about eyeglasses. I was called

as a witness in this case by Eckerd Optical Centers, Inc.

TO THE THIRTEENTH INTERROGATORY HE

SAYS:

(a) Yes, I have.

aaa aaa

A-335

(b) In my opinion, consumers generally pay

substantially higher prices in states where commercial

advertising is prohibited.

(c) In the two studies described above and attached to

this deposition, I found that in those states in which the

commercial information which could be provided to

consumers was more limited, the price consumers paid

was substantially higher. Consumers benefit from

having more information about their options. If they do

not know about alternatives, they cannot respond to

them. If the amount of information available to

consumers is limited, it has the effect of reducing

competition which results in higher prices to

consumers.

TO THE FOURTEENTH INTERROGATORY HE

SAYS:

Yes. As noted on page 423 of our October, 1975 article

in the Journal of Law and Economics, “. . .the removal of

commercial stimuli from the environment (including

advertising, brand name identification, and

identification with well-known establishments) limits

consumers’ knowledge of current or potential

alternatives and hence also limits their response to these

alternatives.”

TO THE FIFTEENTH INTERROGATORY HE

SAYS:

(a) Yes.

(b) The prices will tend to go up.

(c) Trade names provide valuable information to

consumers. If the use of trade names is limited, the

options of consumers will be effectively limited.

Competition will be reduced and prices will go up.

TO THE SIXTEENTH INTERROGATORY HE

SAYS:

A-336

One of the most valuable assets which individuals

have in this large mobile country is their knowledge

about trade names. Consumers develop a sophisticated

understanding of the goods and services provided and

the prices associated with different trade names. This

permits them to locate the goods, services, and prices

they prefer on a continuing basis with substantially

lower search costs than would otherwise be the case.

This can perhaps be illustrated by pointing out the

information provided by such names as Sears, Neiman

Marcus or Volkswagen. This also means that firms have

an enormous incentive to develop and maintain the

integrity of the products and services provided under

their trade name: the entire package they offer is being

judged continuously by consumers on the basis of the

samples they purchase.

If there were no trade names, individuals would have

much greater difficulty obtaining information about

the range of providers. They might know the providers

in a given community well, but if they moved or if some

of the providers moved, the problems of acquiring new

information would face them. Without trade names, the

generality of the information available would be

reduced.

For a product which is not frequently purchased, like

eyeglasses, the restrictions on information may have

particularly severe consequences.

TO THE SEVENTEENTH INTERROGATORY HE

SAYS:

The answer was given to the previous question.

TO THE EIGHTEENTH INTERROGATORY HE

SAYS:

(a) Yes.

(b) Restrictions on the use of the trade name will

Pere me SY Ce ee ee alaataiaa

A-337

mean that consumers are less well informed about their

options. Prices will rise and, because of the higher

prices, fewer people will obtain eyeglasses.

(c) It is quite straightforward. Prices increase when

consumers are less informed and competition decreases.

Commercial providers can be hurt substantially if

limitations are placed on the type of information they

can provide to consumers. Placing limits on the use of a

trade name is one of the most effective ways of limiting

the information provided.

Trade names are of course not the only form of

information generated by providers, but they are an

important form. It is not surprising that in those states

which place limits on the use of trade names, the

commercial providers have a smaller share of the

market.

Our 1975 study in the Journal of Law and Economics

finds that in states where less commercial information

is available (and trade names are an important

dimension of this) the prices tend to be higher. In that

study we also found that the less well-educated

consumers were more adversely affected by the

restriction on information than those with more

education. The prices tend to go up more for the less

educated, lower income individuals when _ such

restrictions are imposed.

All groups were also adversely affected in that they

obtained eye care less frequently where there were

higher prices. This is a particularly unfortunate

consequence of these restrictions. Many individu2ls are

currently not receiving adequate eye care and these

restrictions further raise the financial barrier for such

care.

A-338

TO THE NINETEENTH INTERROGATORY HE

SAYS:

(a) Yes.

(b) The demand for their services will be less than it

would without the restriction.

(c) The trade name provides information about where

consumers can go if they like the service. Without the

trade name affiliation, such information is much more

difficult for consumers to obtain.

TO THE TWENTIETH INTERROGATORY HE

SAYS:

(1) Maybe.

(b) There will be some increased demand for their

services because of the reduced competition from the

commercial firms. Their prices will tend to rise. The

effects of this on the income of the individual

optometrist will be dampened by the influx of

optometrists from other states and the reduced sales of

glasses at the higher prices.

(c) I have answered this in the previous question.

TO THE TWENTY-FIRST INTERROGATORY HE

SAYS:

(a) Yes.

(b) & (c) As stated earlier, the trade name conveys

information. If the number of services covered under

the trade name is reduced, then consumers can no

longer depend upon the trade name to provide

information regarding those services. Those who are

currently using the commercial firms are obviously

going to be worse off. In addition, those consumers who

go to providers not operating under trade names will

tend to pay higher prices. In the 1975 study in the

i

A-339

Journal of Law and Economics, we found that the prices

charged by all providers tended to go up as information

flows were more restricted.

Consequently, the adverse effects of reduced

competition are not limited to the currect or future users

at commercial firms.

TO THE TWENTY-SECOND INTERROGATORY

HE SAYS:

(a) Yes.

(b) Adversely. Their market share will be less than it

would be otherwise. Their competitive position will be

weakened.

(c) The success of the commercial firms is very much

a function of the information they can provide to

consumers. In those states where severe limitations are

placed on their ability to provide information about eye

services, the commercial firms do not do well. Any firm

would be hurt if the range of services provided under its

trade name was limited. In this particular case, the

adverse consequences are likely to be significant.

TO THE TWENTY-THIRD INTERROGATORY HE

SAYS:

(a) Possibly.

(b) The ariswer is the same here as to question 20.

(c) The same as question 20.

TO THE TWENTY-FOURTH INTERROGATORY

HE SAYS:

(a) Yes.

(b) Yes.

(c) The American Optometric Association and the

state affiliates are quite explicit in their desire to

A-340

eliminate the types of information generated in the

usual process of commercial exchange. Quoting from

page 423 of the 1975 Journal of Law and Economics

paper, “From the point of view of the profession,

restricting information may be one of the most effective

politically acceptable methods available for

constraining the behavior of suppliers and consumers in

the desired direction.” In my view, these efforts to

restrict information, including trade name restrictions,

are a significant restraint in trade.

TO THE TWENTY-FIFTH INTERROGATORY HE

SAYS:

(a) Yes.

(b) In my opinion, reducing the information available

to citizens of a state by placing restrictions on trade

names will have the effect of adversely affecting the

quality of eye care of the citizens of the state.

(c) For several years I have looked into this question

and have found no systematic evidence to suggest that,

for those who receive eye care, the quality of eye care is

lower in a state like Texas which has commercial

% #advertising, which includes trade names, than in states

rt.

without commercial advertising. There are, of course,

specific examples of bad care provided by trade name

firms, but there are also specific examples of bad care

by non-trade name providers. I have seen no evidence

which suggests that the quality of care, for those who

receive eye care, is generally lower in Texas than in

states which are more restrictive.

The reason I say that quality of care will tend to be

lower when less information is provided is because !ess

information will mean higher prices and that wil! mean

fewer people will obtain eye care and eyeglasses. They

will obtain glasses less frequently and hence their

glasses will tend to be less suited to their current

A-341

problems, if they have any glasses at all. This is

particularly unfortunate since eyes tend to deteriorate

more rapidly with age, and hence this group is

particularly adversely affected by the higher prices.

The quality of care is dependent not only on the

quality for those who receive care, but also upon the

frequency with which they receive care. Many people

are currently not receiving proper eye care according to

the professional representatives. To quote from my 1975

article on page 445, “Professionals have asserted that

the utilization of eye care in the United States is

approximately half the optimal rate.”

My assertion that fewer people will receive care is

based on results from the 1975 study. Table 4 on page

439 of that study shows the prices and the frequency

with which people obtain eyeglasses in the more and less

restrictive areas.

TO THE TWENTY-SIXTH INTERROGATORY HE

SAYS:

(a) Yes.

(b) Higher prices and fewer people obtaining eye

care. Our evidence suggests that the less educated, less

sophisticated, lower income consumer will hurt even

more than the average consumer.

(c) The evidence from my two studies and all the other

evidence I have seen.

TO THE TWENTY-SEVENTH INTERROGATORY

HE SAYS:

I grew up in Texas so ! was familiar with the name

Texas State Optical when I was voung. I was contacted

approximately two months ago about this case and

agreed to testify. Both of my studies were completed

prior to this contact with Texas State Optical. I have

A-342

never owned any stock in Texas State Optical, have

never been employed by Texas State Optical, have never

accepted any compensation from Texas State Optical,

nor am I accepting compensation for testifying in this

case.

LEE KENNETH BENHAM

Subscribed and sworn to before me_ this__day

of , A.D., 1976.

Notary Public within and for the

County of St. Louis,

State of Missouri.

My commission expires September 15, 1979.

x« * *

A-343

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF DR. LEE BENHAM

TO THE FIRST CROSS INTERROGATORY HE

SAYS:

Yes.

TO THE THIRD CROSS INTERROGATORY HE

SAYS:

a) Probably not.

b) Requiring extensive price disclosures will have the

effect of raising the cost of providing any information to

the consumer and would likely have the effect of

reducing the amount of information actually provided.

If certain eyeglass specifications comprise a very small

part of the market, the cost of advertising those items

may greatly exceed any offsetting economics resulting

from the advertising. This statute has all the

appearance of a tax on advertising and is likely to work

to the detriment of the average consumer in the state.

TO THE FOURTH CROSS INTERROGATORY HE

SAYS:

a) The state does not require price cisclosure.

b) The statute states that no one can advertise price

unless they obtain a permit and advertise the prices of

all items listed with equal prominance. In virtually no

markets do we observe all items given equal

prominance irrespective of their volume of sale. Such a

requirement will make any advertising more expensive

and consequently there will be less of it. On net, I would

guess that most consumers would be less well informed

as a consequence of this requirement than would be the

case without restrictions on advertising.

A-344

TO THE FIFTH CROSS INTERROGATORY HE

SAYS:

In my opinion, it is better to have one price advertised

than none at all. As noted above, since the current price

advertising statute is in effect a tax on advertising,

there will be less advertising and most consumers will

be less well informed. Since they are less informed, they

will be more vulnerable to being charged higher prices.

The most obvious consequence of bait and switch is

that consumers end up paying more. Therefore if bait

and switch were a common consequence of advertising,

consumers would on average end up paying more in

states which permitted advertising. All the available

evidence suggests just the opposite. The prices

consumers end up paying are lower in the states with

fewer restrictions on advertising. This suggests to me

that the problem of bait and switch is much less

important than the adverse consequences of restrictions

on information.

I have seen no evidence to suggest that the problem of

bait and switch arises frequently. Bait and switch

tactics are, I believe, against the law. If the problem

does arise, then specific, inexpensive, remedies can be

developed.

TO THE SIXTH CROSS INTERROGATORY HE

SAYS:

a) Probably, although I have no direct evidence.

TO THE SEVENTH CROSS INTERROGATORY HE

SAYS:

a) My guess is that it would tend te reduce the

overhead.

b) The restrictions on advertising do not eliminate

the desire of the consumer for information or of the

providor to make it available. If advertising is

A-345

restricted, then the providors will attempt to make their

existence known in other ways. One of the most

important ways is in termsof location. A convenient and

visible location which will attract consumers is

generally going to be more expensive. This is an

alternative and expensive form of substitution for

advertising. Another substitute for the more

conventional forms of advertising is to provide elegant

surroundings in the waiting room. From the consumers

point of view, the convenience and posh surroundings

are not without value but are an inefficient substitute

for having more direct information. This is not to say

that in states with advertising, such amenities will be

absent. Certainly not. Only that these are two

dimensions along which overhead costs will likely

increase when advertising is restricted.

There is another dimension in which overhead costs

are lower is states which perinit advertising. States

with advertising restrictions appear to have higher

frequency of low volume, high priced outlets which have

high overhead per paid or eyeglasses sold. In the more

competitive states, (as Texas has traditionally been)

these high overhead operations have faced more

competitive pressure and hence have had a smaller

share of the market. The evidence with which I am

familiar suggests that the overhead costs per pair of

glasses sold are substantially higher in the states with

advertising restrictions.

TO THE EIGHTH CROSS INTERROGATORY HE

SAYS:

a) That is stating the proposition incorrectly.

b)Advertising in newspapers or television will

sometimes result in higher volume of sales. A firm

doesn’t generally increase its volume so that it can

advertise; the advertising sometimes leads to a higher

volume.

A-346

TO THE NINTH CROSS INTERROGATORY HE

SAYS:

a) I do not know.

b) The firms which advertise could well havea higher

volume per firm. The number of employees per firm is

likely to be higher in the firms which advertise. I would

also expect that the optometrists in the advertising

firms spend less time waiting for patients.

There is no a priori reason to believe that the

pressures on the employees in the advertising firms will

differ from the pressures on employees of non

advertising firms. The pressures to keep prices down

will be less for all providers in the states with

restrictions on advertising.

TO THE TENTH CROSS INTERROGATORY HE

SAYS:

a) I see no reason why.

b) The pressures placed on employees in eye firms, as

in all firms, will depend upon many factors. There is no

reason why advertising, per se, should lead to

systematically different incentives. I would expect

greater specialization in the advertising firms where

the optometrist is less frequently involved in tasks

which do not require his training.

TO THE 11th CROSS INTERROGATORY HE SAYS:

a) In my opinion, the consumers will generally make

a sensible choice within the limitations of the

information available to them.

b) There is every reason to believe that the quality of

service varies across optometrists (just as it does in the

case of physicians, dentists, or other professionals). The

individual consumer has great difficulty in obtaining

information about these differences including, the

A-347

“personal reputation for professional competence.” One

of the principal reasons is that the professional

associations go to considerable lengths to ensure that an

optometrist will not give a candid appraisal of another

optometrisi to a patient. This is shown in the Code of

Ethics of the American Optometric Association. as

quoted in footnote 9 on pages 424 and 425 of our article

on “Regulating through the Professions.” “The

optometrist, in his relations with a patient under the

care of another optometrist, should observe the strictest

caution and reserve; should give no derogatory hints

relative to the nature and care of the patient’s disorder. .

. When an optometrist succeeds another optometrist in

the charge of a case, he should not make comments on, or

insinuations regarding the practice of the one who

preceded him.”

What all this means is that the consumer is on hisown

in making judgments about providers of service because

very little information about the quality differences

across practioners is provided. If consumers go to a

source of care and are satisfied with the service and

price, they will go back. If they are not satisfied, they

won't go back.

This is true both for sources of care which advertise

and for those which do not. The difference is that with

advertising, some dimensions of the prospective

transaction are known before the transaction is

underway.

TO THE 12TH CROSS INTERROGATORY HE

SAYS:

That was my impression.

TO THE 13TH CROSS INTERROGATORY HE

SAYS:

I did not know it, but it does not surprise me given the

nature of the statute discussed above.

A-348

TO THE 14TH CROSS INTERROGATORY HE

SAYS:

One section of the study published in 1972 was

concerned with this issue. This study is already in

evidence.

TO THE 15TH CROSS INTERROGATORY HE

SAYS:

There is a discussion in the 1972 and 1975 studies on

the question of quality. Both have been put in evidence.

At the time these studies were published, I had seen no

systematic evidence suggesting that the quality of eye

care or eye glasses differed as between states with and

without advertising for those who received eye care. I

know of no new evidence which shows a systematic

difference. The quality of eye care for the population asa

whole will be adversely affected by the restrictions and

consequent high prices since fewer people will obtain

eye care.

TO THE 16TH CROSS INTERROGATORY HE

SAYS:

At the time I began the study, the 1963 NORC survey

was the only data I knew about that contained

information about the prices individuals paid for

glasses. Had better information been available, I would

have used it. When the 1970 survey described in out

attached study, Regulating the Professions, became

available, we used it.

TO THE 17TH CROSS INTERROGATORY HE

SAYS:

No, the consumer price index is not available on a

state basis. It is noteworthy that the South and

Southwest generally had a lower cost of living at the

time the survey was made. A larger proportion of the

restrictive states examined in the earlier study were

located in the South. Hence, if anything inclusion of the

A-349

cost of living differences is likely to increase the real cost

differentials as between the restrictive states and the

unrestrictive states.

One way to examine this question directly is to

compare the prices on contiguous states which have

difference laws. Louisiana, Arkansas, Oklahoma and

New Mexico have traditionally been much more

restrictive on the question of providing information to

the consumer than Texas. In my 1972 article in the

Journal of Law and Economics, I made a personal

survey and compared the prices of eyeglasses in Texas

and New Mexico. This is discussed in footnote 14 on page

344 of that study. I found the prices to be 22% higher in

New Mexico. For technical reasons discussed in that

footnote, this will be an understatement of the

differences consumers actually pay in the two states.

I have also made some comparisons of the prices

consumers pay in Texas and the more restrictive

surrounding states in 1970 using the data described in

“Regulating through the Professicns” published in the

Journal of Law and Economics in October, 1975. As

compared to Texas, the prices of eyeglasse in Oklahoma

were 35% higher. The prices in Arkansas were 16.5%

higher than in Texas, and the prices in Louisiana were

31% higher than in Texas. Unfortunately, no prices were

available from New Mexico even though a substantial

number of people were surveyed there. The fact that

none of these sampled in New Mexico obtained glasses

within the year presumably is one consequence of the

higher prices in the state:

TO THE 18TH CROSS INTERROGATORY HE

SAYS:

No. The answer to the previous question does look at

the price variation within the region.

A-350

TO THE 19TH CR@SS INTERROGATORY HE

SAYS:

We did no special analysis on the price differences in

the cost of examinations in North Carolina. In both

studies, the primary emphasis was on the price of

eyeglasses.

TO THE 20TH CROSS INTERROGATORY HE

SAYS:

a) and b) This question was not examined directly in

the 1972 study. However, direct evidence is available in

the 1975 study. In that study, as shown in Table 5 on

page 442, the prices charged by optometrists for

eyeglasses tended to be slightly higher than the prices

charged by physicians in the restrictive states such as

North Carolina.

TO THE 21STCROSS INTERROGATORY HE SAYS:

Restrictions on the ability of commercial

establishments to hire an optometrist is the principal

restriction which I had in mind.

TO THE 22ND CROSS INTERROGATORY HE

SAYS:

Had more non-routine items been provided by

physicians and had the items been inappropriately

coded up as part of the eyeglass cost and had our

extensive coding procedure missed those items, then the

price in North Carolina would have been affected more

by their inclusion. I mentioned this as one possibility in

footnote 13 of that study. More recent evidence suggests

that the shift to physicians as the source of care in the

more restrictive states is not the explanation for

interstate price differences.

b) In the study published in 1975, we made a direct

comparison of the price of eyeglasses by source of care.

This is shown in Table 5 and 6 of that study. The price

of all providers tends to rise as the restrictions increase.

A-351

TO THE 23RD CROSS INTERROGATORY HE

SAYS:

Yes. The first national sampie, which was conducted

before I became interested in this topic, had a heavy

oversampling of individuals living in North Carolina.

The second study published in 1975 did not. In our 1975

article, only 3.6% of the eyeglass price sample came from

North Carolina. The exclusion of that state from the

later article would not materially affect the conclusions

drawn. It is noteworthy that North Carolina remained a

high price state in the later study.

TO THE 24TH CROSS INTERROGATORY HE

SAYS:

Yes.

TO THE 25TH CROSS INTERROGATORY HE

SAYS:

Yes. It is worth pointing out that excluding data from

some other states would have increased the observed

differences. I found and I find. no a priori reason for

excluding North Carolina. More important, all the

evidence which I have seen since that article was

published strongly supports the proposition that the

restrictive states have higher prices.

It is also worth pointing out that while North Carolina

was overrepresented in that study, most of the severely

restrictive states were underrepresented. Indeed, the

most illuminating comparison in that earlier study

could well have been the comparison of the prices in

Texas and the District of Columbia with those in North

Carolina. This is perhaps the best indication of what can

happen to prices when we move from the relatively

laissez faire environment at that time in Texas and the

District of Columbia to the highly restrictive

environment of North Carolina. The average price of

eyeglasses in North Carolina was approximately 100%

higher than in Texas and the District of Columbia.

A-352

TO THE 26TH CROSS INTERROGATORY HE

SAYS:

a) The exclusion of New York would affect the

conclusions concerning the importance of price

advertising as compared to non-price advertising. The

exclusion of New York would not affect the conclusions

concerning the effects of advertising in general.

b) This is discussed on pages 349 and 350 of my paper

published in 1972. New York did not permit price

advertising in 1963 when the survey was undertaken.

There are a priori reasons for concern about the

appropriate classification of New York however. The

argument about the effect of advertising is not that

advertising per se reduces prices, but that advertising

permits consumers to obtain information more readily,

permits them to shop more efficiently, increases

competition and through these rmechanisms reduces

prices. Anything which reduces the cost to consumers of

obtaining information will have the effect of increasing

competition. This is relevant for New York in that a

substantial proportion of the population of New York

lives in New York City and a substantial proportion of

the sample in this study from New York state came from

New York City. The high concentration of sellers

located in a relatively small area there reduces the

difficulty consumers have in obtaining price

information and increases the incentives for providers

to lower their prices. New Yorkers thus have cheaper

substitutes for price advertising than most other

citizens, and this situation is reflected in lower prices.

This unusual situation in New York creates some

difficulties in ascertaining the consequences of

restricting price advertising since the limitation on

price advertising in New York would have fewer

consequences than in less dense locations.

A study of eyeglass prices in New York state which

preceeded my own 1972 study alerted me to the

A-353

co:npetitive nature of the high density market in New

York City. This is noted in footnote 18 on page 346 of that

study. That note states that, “Another recent study of

prices charged for frames and lenses by optomtrists and

by retail stores in New York showed substantially lower

prices in the retail stores. The study also found that

prices charged by optometrists were lower in an area

with a high concentration of commercial firms (New

York City) than in areas with a lower concentration of

commercial firms.”

My uncertainties about the representative nature of

the New York City experience in terms of price

advertising caused me to include the caveat in footnote

28 of that article.

TO THE 27TH CROSS INTERROGATORY HE

SAYS:

Yes.

+ a 28TH CROSS INTERROGATORY HE

Yes, and those marketing professors whom I queried

about the issue later indicated they had changed their

opinion.

TO THE 29TH CROSS INTERROGATORY HE

SAYS:

a) Yes.

b) The principal support for this study was provided

by the University of Chicago which provides research

facilities, some general support and salary support for

its faculty members to undertake research of their own

choosing. Part of the institutional support for the Center

for Health Administration Studies which is part of the

University of Chicago was provided by a grant from the

Department of Health Education and Welfare to

support research on the social and economic problems of

A-354

the medical sector. The Department of Health

Education and Welfare provided the funding for the two

national health surveys which were used in the two

studies attached as well as in a wide variety of other

research topics examined by other individuals.

There has been no research support provided to me by

the commercial operators in this industry. I became

interested in the question of interstate price differences

originally when members of my family had to pay twice

as much for eyeglasses in California as in Texas and

obtained poorer service in California.

TO THE 30TH CROSS INTERROGATORY HE

SAYS:

a) Difficult to say.

b) It will not always be possible to locate the non-

trade name optometrist when an emergency arises. If

this particular problem is perceived to be serious, then

surely some direct remedy can be made so that the

patients have a name and a number to call in case of

emergency.

TO THE 31ST CROSS INTERROGATORY HE SAYS:

a) Yes, but with an important qualification.

b) | would guess that among people obtaining

eyeglasses during a given time period, those who went to

self-employed optometrists would know the specific

name of the optometrist more frequently than those

going to optometrist practicing under a trade name.

However, the proportion of all persons in a state who

obtain eyeglasses during a given time period is lower in

the more restrictive states, where the associated higher

prices lead them to obtain eyeglasses less frequently. I

would guess that the proportion of all individuals in a

state who know any source of eye care at all is lower in

the more restrictive than in the less restrictive states.

A-355

TO THE 32ND CORSS INTERROGATORY HE

SAYS:

No.

LEE BENHAM

Sworn to and subscribed before me _ this__day

of , 1976. My commission expires December

17, 1978.

NOTARY PUBLIC

A-356

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

DR. N. JAY ROGERS § CIVIL ACTION

NUMBER

VS. §

B-75-277-CA

DR. E. RICHARD §

FRIEDMAN, DR. JOHN g (THREE JUDGE

W. DAVIS, DR. JOHN B. COURT)

BOWEN, DR.HUGHA. _ §

STICKSEL, JR. AND DR.

SALVADOR S. MORA §

AFFIDAVIT OF STANLEY BOYSEN

My name is Stanley Boysen, I reside at 1611

Wethersfield Road, Austin, Travis County, Texas. I am

the Executive Secretary of the Texas Optometric

Association, and I have served in that position since

1964.

On June 8, 1967, the Board of Directors of the Texas

Optometric Association adopted the “Provisional

Membership Plan”. This membership plan applied only

to new members who were applying for membership in

TOA. Such plan did not apply to the existing TOA

members. A copy of that plan is attached. The plan isa

recommendation of a TOA committee, and it was

adopted by the Board at their June 1967 meeting.

On May 11, 1968, the Board of Directors of TOA

adopted and instituted the “Practice Evaluation

System”. This applied to both new members and

existing members of TOA. The “Practice Evaluation

System” was an outgrowth and an enlargement of the

1967 “Provisional Membership Plan”. The attached

—_—

A-357

article from the June 1968 TOA Journal outlined the

provisions of the “Practice Evaluation System”.

In the September, 1969, issue of the TOA Journal, Dr.

Jerome McAllister wrote an article on the “Practice

Evaluation System”. He was mistaken in his dates when

he stated that the “Practice Evaluation System” started

on January 1,1970. This error is obvious from a reading

of the 1968 TOA Journal article on the same subject.

The “Provisional Membership Plan” and _ the

“Practice Evaluation Plan” were not drafted, adopted,

or intended for the purpose of opening membership of

TOA to commercial optometrists.

Neither the “Provisional Membership Plan” nor the

“Practice Evaluation System” were a productor a result

of the 1969 compromise legislation. They were not the

result of any promises on behalf of TOA or any

spokesman for TOA. To my knowledge, no member of

TOA has ever promised anyone that the membership of

TOA would by enlarged to encompass commercial

optometry. Membership in TOA has been and continues

to be limited to those who adhere to the professional

standards set forth in the TOA rules of practice and the

standards of the respective local optometric societies.

5/8

Stanley Boysen

STATE OF TEXAS’ §

COUNTY OF TRAVIS

Before me, the undersigned authority, a Notary

Public in and for said county and state, on this day

personally appeared STANI _—~‘F. BOYSEN, known

to me, who being duly swor ‘cates on oath that the

foregoing information is true and correct.

A-358

s/s

Stanley Boysen

SWORN TO AND SUBSCRIBED BEFORE ME,

this the 8th day of October, 1976.

s/s

Notary Public,

Travis County, Texas

TO: ALL OFFICERS AND DIRECTORS OF THE

TEXAS OPTOMETRIC ASSOC.

Greetings:

The Special Committee on Provisional Membership

makes the following recommendations:

1. That the Officers and Directors of this Association

be the body to stimulate and instigate interest

among marginal non-members of TOA to become

Provisional Members of TOA.

a. The Board shall prepare a _ special

membership application blank for such non-

members. (Suggested sample enclosed).

b. Representatives of the Board shall, in those

societies areas that have approved the

Provisional Membership and Practice

Evaluation Plan at a regular meeting of the

society and the TOA Board of Directors has

been notified in writing of such approval, make

personal contact by a visit with Provisional

Member prospects, and after discussion, leave

a Practice Evaluation form and membership

application blank with him or her.

oe |

A-359

ce. The Board shall receive such Membership

applications directly through the Secretary of

TOA. The Secretary shall immediately notify

the President and the Board Members of

receipt of such application.

d. At the instigation of the President the Board

shall alone act and decide whether the

applicant is sufficiently marginal in point

requirements to warrant Provisional

Membership status, or if applicant qualifies for

direct consideration by a local society. If the

applicant qualifies for Provisional

Membership only, upon approval by the Board,

his or her name shall be placed in a file separate

from Active (or other) Memberships, so that

notation can be made from time to time on his

progress toward Active Membership

eligibility.

e. Notification of such action by the Board on

any given applicant shall be issued to the

Secretary of the local society within which the

applicant resides, if a local society exists in the

residence area.

f. Accompanying such notification to the local

society shall be a request that the local society

co-operate in the effort by the Board to urge,

assist, and aid such Provisional Member in

improving his or her practice to the point that

he or she may become qualified to apply for

Active Membership. This shall include the

inviting of the Provisional Member to attend

regular local society meetings with full

privileges except voting. Request should

include the appointment of one (or more) of the

society members to directly be responsible for

visiting, observing and assisting the

A-360

Provisional Members every three months, and

reporting in writing his appraisal to both the

local society and the Board of Directors of TOA

through the TOA President. (Three-months is

an arbitrary time suggested).

g. The Board as a whole shail be kept informed

on each Provisional Member’s status by the

President and Secretary each three months

(three months arbitrary), by written reports in

the absence of Board meetings.

h. A Practice Evaluation System (suggested

form attached) shall be the guide by which a

Provisional Member is judged both for

qualifying as a Provisional Member and for his

progress toward achieving Active Membe vship

eligibility.

i. Upon achieving sufficient points within a

three-year (or shorter) period on the Practice

Evaluation System scale to qualify for Active

Member eligibility, notification of this

achievement, along with a detailed report of his

or her progress history, shall be sent to the local

society President and Secretary, with the

request that the local society contact the

Provisional Member and invite him or her to

apply for local, state, and national optometric

society membership. Simultaneously,

notification, including congratulations and

praise, shall be mailed to the Provisional!

Member by the President to the effect that he or

she has reached the point that local and state

society application for Active Membership can

now and should be made, if a local society exists

in his or her geographical area, for processing

in the normal and customary manner. Such

processing shall then be the responsibility of

the local society.

A-361

2. Membership fees for the Provisional Member shall]

be set by the Board, taking into consideration the

financial status of Provisional Members as a whole.

a. The dues for Provisional Membership shall

be the same as for regular active membership

in TOA, unless altered, in special hardship

cases, by action of the TOA Board of Directors.

b. Provisional members would be eligible for

the TOA Insurance Program, to receive all

publications and mailings of TOA, to become a

member of the TOA Credit Union and to

receive all other benefits provided to Active

Members including attendance at all meetings

of the association with privileges of floor but

cannot vote.

A period of three years as a Provisional Member

shall be sufficient time to determine if a given

Provisional Member is achieving toward the goal of

Active Membership.

a. Unless extenuating and excusable

circumstances have interfered with said

achievement, the Provisional Member shall be

dropped from the rolls of TOA at the end of

three years.

b. Should such circumstances extenuate, a vote

of two-thirds of the Board shall continue the

Provisional Membership, if approved by the

local society, for one more year.

c. Before such a vote to extend is called for, the

complete history of the Provisional Member

must be reviewed.

4. Having instigated the solicitation of Provisional

Memberships in TOA, the Board shall find it

A-362

incumbent upon itself to utilize every means at its

command to carry through on each and every case

on the Provisional Membership rolls toward a

successful conclusion of the program.

a. If Practice Management training is

required, provide it.

b. If post-graduate study to sharpen his or her

optometric skills for greater proficiency is

needed, arrangements could be made either

through the University of Houston, or by means

of training seminars manned by TOA members

proficient in given methods and modalities.

ce. Aid inoffice routines shall be made available

if needed.

d. Public Relations knowledge shall also be

made available.

If, by experience in the Program, changes in

procedure are found necessary to enhance the

program, careful study to the proposed changes

shall be made before adoption.

a. A Committee on Provisional Membership

rules changes shall be appointed either from

withn or without the Board by the President to

perfect and recommend on such changes

deemed advisable.

b. Such changes shall be concurred in by the

local societies, who have approved the program

as provided in Section l(b), after presentation

by the Board.

A report shall be made annually to the TOA State

Conventions assembled - in detail - numbers

involved, precentage of those improving, etc. on all

Provisional Members.

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A-363

7. All-out effort shall be made by the Board to

— this program within a reasonable length

of time.

The attitude of the local society in which the Provisional

Member resides regarding that member should at all

times be taken into consideration by the Board.

Immediately upon adoption of the Provisional Member

program, a Practice Evaluation System will be

considered for adoption by TOA to apply to existing

members of TOA. Such Practice Evaluation System

could quite easily be a duplicate of the so-called

“Colorado Point System”, with whatever variations that

may apply to the unique needs of TOA.

Your committee recommends the official names of this

activity be:

1. Provisional Membership Plan

2. Texas Practice Evaluation System (instead of

Point System).

3. Special Application Form for Provisional

Membership. Later,

4. Texas Practice Evaluation System for

Members of the Texas Optometric Association,

Inc.

We, your Committee on Provisional Membership,

present these proposals in the hope that further

consolidation of membership in the Texas Optometric

Association can be achieved. We hope, too, this may

institute the beginning of a new era in optometric

organization and co-operation.

A-364

Respectfully submitted,

Joe Wright, O.D.

Wes Pettey, O.D., Chairman

PRACTICE EVALUATION SYSTEM

No. 1.0FFICE LOCATION AND EXTERIOR

APPEARANCE

25 points for professional location in office

building, professional center or downstairs

separate street location.

5 points for street location with public

presentation as dispensing optician, with

___displays, signs, etc.

25 Maximum

No. 2.ADVERTISING OTHER THAN PROFES-

SIONAL CARDS OR LISTING

20 for no advertising

6 for no TV and Radio adv.

3 for no Newspaper adv.

2 for no Telephone dir. adv.

2 for no adv. in other directories or periodic

___ Publications

20 Maximum

No. 3 DISPLAYS

15 for no displays

5 for no window display

3 for no frames from view of people in reception

—__ room

15 Maximum

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A-365

No.4 SIGNS

20 for professional signs only

10 for no neon signs

5 for no oversize, garish signs from front and

~__sides of office

20 Maximum

No.5 PRACTICE IN YOUR NAME ONLY, AND

NAME NOT USED IN CONJUNCTION WITH

OPTICAL COMPANY, OPTICIANARY, OR

DISPENSARY

10 points Maximum

No.6 ATTENDANCE AT PROFESSIONAL

MEETINGS

4 points for 4 local society or TOA meetings

annually

6 points for one TOA approved educational

___meeting annually

10 points Maximum

Total possible points, 100.

Sixty points shall be sufficient to qualify an applicant to

become a Provisional Member; however, he is required

to achieve five additional points each year for a period of

three years in order to become an Active Member.

Page 8 The Journal of the Texas

Optometric Association/

JUNE, 1968

Practice Evaluation System

Adopted at TOA Convention

The following Practice Evaluation System, over a

year in preparation, was adopted at the recent TOA

Convention in Austin.

A-366

TO: THE OFFICERS AND DIRECTORS OF THE

TEXAS OPTOMETRIC ASSOCIATION, INC.

The Special Committee on Membership Eligibility in

the Texas Optometric Association, Inc. makes the

following recommendations:

1.

An optometrist licensed to practice optometry in

the State of Texas shall be eligible to become an

Active Member, or shall be eligible to continue a

present Active Membership already held in the

Texas Optometric Association, Inc., who can

qualify according to the following Practice

Evaluation System requirements, as interpreted by

the official TOA Membership Committee in

conjunction with the agreement of the TOA Board

of Directors:

Practice Evaluation System

I. OFFICE LOCATION AND EXTERIOR

APPEARANCE

25 points for professional location in office

building, professional center,

downstairs separate building or street

location, or in conjunction with other

professionals.

5 points for street location with public

presentation as dispensing optician, with

displays, unprofessional signs, etc.

25 Maximum

Il. ADVERTISING (Professional Card or

Listing Acceptable)

20 for no unprofessional media releases

6 for no TV and Radio advertising

3 for no Newspaper advertising

2 for no Telephone directory advertising

2 for no advertising in other directories or

periodic publications

20 Maximum

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A-367

III. DISPLAYS

15 for re displays

5 for no window display

3 for no frames in view of people in

reception room

<a

15 Maximum

IV. SIGNS

10 for professional signs only

5 for no neon signs

3 for no oversize, garish signs from front

‘a and sides of office

10 Maximum

V. PRACTICE IN YOUR NAME ONLY, AND

NAME NOT USED IN CONJUNCTION

WITH OR FOR OPTICAL COMPANY,

OPTICIANRY, OR DISPENSARY

10 Maximum

VI. ATTENDANCE AT PROFESSIONAL

MEETINGS

4 points for 4 local society or TOA

meetings annually

6 points for one TOA approved educational

meeting annually

10 Maximum

VII. MINIMUM STANDARDS FOR VISUAL

EXAMINATION

as promulgated by Texas State Board of

Examiners, (1957)

10 Maximum

Total possible points, 100

2. A Minimum of 70 points shall be required in order

for a member to maintain a present TOA Active

Membership, or for a new applicant to qualify as an

Active Member in TOA.

a. Should the TOA member not qualify for

Active membership with a total of 70 points,

he shall be allowed a maximum of 24 months

A-368

from that date to achieve the 70 points without

being removed from the TOA Active

Membership rolls.

b. An applicant for new Active Membership in

TOA not complying with the required 70

points shall be eligible to be automatically

placed on the rolls of TOA as a Provisional

Member, if the applicant desires such

alternate membership, and achieves the

required 60 points.

ce. An already Active member of TOA not

complying with the required 70 points on or

after January 1, 1970, shall automatically be

placed on the Provisional Membership rolls, if

the member desires such alternate

membership.

3. Local optometric societies shall use the above

Practice Evaluation System in accepting an

application for Active membership in a local

society.

a. The local optometric society shall first be

required to approve the application for Active

Membership and then shall forward, along

with its recommendation, the application for

Active Membership and the P.E.S. form to

Membership Committee and the Board of

Directors of TOA for final approval or

rejection.

In the absence of a local organized optometric

society in the area of residence of an applicant, the

applicant shall secure a membership application

form along witha Practice Evaluation System form

from the Secretary of the TOA, and, after having

filled out both forms return both to the Secretary of

TOA for direct approval or rejection of the

application for Active Membership by the Board of

Directors of TOA.

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A-369

5. Beginning January 1, 1970, each member of TOA.

or each applicant for membership in TOA, shall be

required, in order to qualify to continue Active

Membership or to apply for Active Membership, to

achieve an additional 5 points each year for three

years, to total 85 points by January 1, 1973, as

judged by P.E.S., and iterpreted by the Board of

Directors of TOA.

It shall be required that the Board of Directors of

TOA shall by July 1, 1968 submit a Practice

Evaluation System form to be filled out and

returned to the Directors within ninety days of

receipt in order to develop a Practice Evaluation

System information record of every TOA member.

Respectfully submitted:

Joe Wright, O.D.

Weston A. Pettey, O.D., Chairman

A-370

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF DR. E. RICHARD FRIEDMAN

>

[10]

When did you enter the practice of optometry?

1940.

And you say that this battle has been raging since

1940?

Well, of course, I was not active. I was just really in

practice and then I went into the service for four

years, but yes, I would say that there had been -- the

makings of it were beginning back then.

Was there in fact a bill adopted in the 4lst

legislature that led to a further dispute within the

profession?

I really don’t know. That was before my time, before

I was active. I was in the service in those days.

Tell me what these two factions are?

The two factions are those that believe in optometry

being practiced in a professional manner similar to

medicine and dentistry and the other great

professions, and those that think that optometry

should be practiced in a not so professional plane.

All right. Now, let’s define for the moment the basic

differences between the two. You represent a

viewpoint, let’s say, that is espoused by the TOA, is

that correct?

I don’t --

You personally?

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A-371

I wouldn’t say that, no. I represent a viewpoint that

Is my own viewpoint. I don’t espouse anybody’s

viewpoint, and I don’t believe in espousing

anybody’s viewpoint.

All right. Fine. Tell me the difference between the

two viewpoints. You said that one of them is not so

professional.

Weli, I mean, elucidate. Just what --

What do you mean by that?

Well, professional practice means proper doctor-

patient relationship, ample time given to the seeing

of a patient, no commercial aspects, no holding

yourself out to do certain things different than

others. This is what I mean. This is my idea of being

a true profession.

Let’s just take these a step at a time. You said no

commercial aspects. What do you mean by that?

Oh, I would Say price advertising, window displays,

blatant signs, things that are pretty well mentioned

in our statute, that I mentioned as being prohibited

in our statute.

Window displays. That would be where frames and

Frames and glasses in the doctor’s windows, yes.

What about, you said large signs; that would be a

commercial type sign?

Neon, huge neon signs and such.

What about newspaper advertising?

The same thing there, any blatant newspaper

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A-372

advertisement. I think a professional cut such as a

physician or a dentist uses is proper.

Waat about trade names?

No, I don’t think a professional should use a trade

name.

What other commercial aspects do you refer to?

That pretty well wraps it up, I think, outside of just

the general practice. I do think that a large volume

practice does not lend itself to proper doctor-patient

care.

As you discuss these five commercial aspects, aren't

you -- you were here during the deposition of Dr.

Mora.. Doesn’t it all boil down to advertising in one

form or another, whether it is a trade name, price,

window displays, neon sign?

Well, that plus the actual patient care, yes.

All right. Now, would you agree with me that

whether I am asingle practioner or associated with

a hundred lawyers, that I can either handle a large

volume or a small volume as, one, the demand, and

two, my inclination permits?

No, sir.

You do not?

No, sir.

Well, let’s just take the lawyer as an example. I can

either --

I can’t speak for a law practice. I can only speak for

an optometric practice.

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A-373

Well, is it your opinion and are you testifying here

that the single practitioner cannot handle a large

volume?

Not -- it depends on what you mean by a large

volume.

Well, you used the term. I just accepted it.

I think a single practitioner can see one --two

patients every -- he can see a patient every 45

minutes and do an adequate job, yes.

Well, was that different from Dr. Mora and his

practice?

I don’t know Dr. Mora’s practice. I don’t know how

he practices. I assume he practices professionally.

Well, would that be any different from the man

practicing in an office with Texas State Optical?

I really couldn’t say.

Can you tell me why there would be any difference?

Only if they are seeing more patients than can be

properly given care.

That would then depend largely upon the man and

his professionalism, would it not?

I woud say so, yes.

And it would be --

I would imagine that they have the right to see as

many patients as they wish. I would hope so.

All right. And so whether he was properly treating

a patient would be more --

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A-374

But that’s what you are asking me, is this

professionalism, and exactly what I think. If the

man is seeing the proper number of -- giving

patients proper care, this is professional.

That’s right, and that is one of the things that you

are speaking to?

Yes.

All right. Now, cutting through all of this

conversation that you all have had through the

years, at this point essentially there is no

disagreement between you and Dr. Rogers as to the

proper examination for refraction or prescription,

is there?

No, sir, I don’t think there is any disagreement.

So whether a patient would come to your office or to

Nate Roger’s office, you would expect that he would

get the same proper examinations or refraction and

prescription?

I would expect and hope that he would.

And you rather believe that’s true, do you not?

I think in many instances it is, yes.

But you all have had, and do have and apparently

will continue to have, a substantial disagreement

about, as Dr. Mora said, the mode of practice.

I think there is less disagreement today than there

was a few years ago before the new Texas

Optometry Act.

And the mode of practice reates basically, does it

not, to these five items that you mentioned: window

displays, price ads, signs, newspaper ads, and trade

name.

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A-375

I believe that most optometrists today are in

compliance with the statute, which is all I am

saying they need to do as far as the Board is

concerned.

What about the ownership of multiple offices?

There is nothing in the statute about that.

What is your viewpoints on the ownership of

multiple offices?

I have no viewpoint one way or the other. I just

believe that the statute should be compiled with.

Do you own multiple offices?

I do not.

Have you ever owned multiple offices?

Never have.

Did the TOA introduce a bill in 1951 to eliminate

multiple offices?

I really don’t know.

Is this one of the aspects of the code of ethics of the

TOA that you shall not own multiple offices?

I’m not sure. Could be.

We will come back to that.

Okay.

Board Interpretation No. 8, the revised Board

Interpretation No. 8, speaks to the use of what ycu

might call para professionals, does it not,

assistants?

A.

A-376

I don’t remember. I will have to --

‘

MR. GREENHILL: Here.

ee a ee

Yes, yes, | remember this.

Now, Board Interpretation No. 8 relates to assitants

or para professionals.

Yes, sir.

Taking histories and making certain -- taking

certain steps in the examination process?

Yes.

And one of the purposes of this is to better utilize the

professional’s time.

I would assume so, yes, sir.

Well, isn’t that --

It’s to free him to perform duties to which he is more

specially qualified.

To which only he is --

Yes.

-- trained and licensed?

Yes.

And this Board Interpretation No. 8 and its

implementation reduces the amount of time that the

professional need spend with any particular

patient?

Yes.

And that would allow him to see more patients and

render more patient service as a professional?

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A-377

Yes.

The 45 minutes that you speak about in this normal

examination, does that include the frame styling

and fitting?

No, sir.

You are speaking now just the optometrist’s --

Yes.

-- patient examination?

Yes. I might mention that I personally do not use a

para professional in my office. I take my own case

history because I think it’s extremely important,

and the same with any acuities and all these things.

I know that the Board has interpreted the statute to

allow these things but does not mean that this is the

way all optometrists need practice.

And you voted for it if the records --

I was not on the Board at the time this was passed.

It was adopted unanimously and it was adopted in

January of ’72 and you were not a member of the

Board at that time?

No, sir.

All right. You have been to the M.D. whose assistant

has taken your case history.

Yes, sir, sure have.

Now, when you spoke of the battles that took place

in the legislature and the court, when did you begin

participating in these battles?

>

A-378

Oh, I would guess somewhere in the late 1950s. I

wouldn’t say participating. I went down and

lobbied with my own representative and state

senator.

As a member of TOA?

No, as my, as -- for my own self. I was a member of

TOA.

And what bill did you first speak to that you recall?

I really don’t recall.

What was the issue?

I don’t know. I have been down so many times I just

don’t remember.

All right. When you speak of cases in court, do you

speak of any particular case?

Well, I am familiar with the cases that started -- I

guess with the Kee-Baber case and then all from

then on.

And there has been numerous of those?

Yes, sir.

You spoke of the governor’s office. Has there been

through the years quite a tussle with the various

governors over appointments to the Board?

Well. I don’t know that you would call it a tussle. I

think that reeommednations have been made to the

governor from various sources.

Including the TOA?

Yes, including the TOA.

o> o>

A-379

wo

And has there been substantial dispute in the

confirmation process of some Board members?

Yes, sir.

Have you participated in that?

I have -- yes, I have. I have lobbied with my own

legislators.

Have you personally lobbied against the

confirmation of Dr. Rogers and Dr. Mora?

Yes.

When is the last time that you lobbied against the

appointment and confirmation of Dr. Rogers?

It was before the new act.

You did not personally speak to Governor Smith

about the reappointment of Dr. Rogers to the

present Board?

I did not.

Do you know who did?

No, I don’t.

Have you heard it said that TOA spoke to Governor

Smith and said, “Appoint anybody in Texas but

Nate Rogers, and we will accept him”?

No, I don’t know anything about that. I never heard

that expression.

Did you oppose the confirmation or, first, the

appointment of Dr. Mora?

Before the act was passed there were several

appointments -- I don’t recali the names, but we all --

rer Se ? +

A-380

all of us who were opposed to it went down and

lobbied against this.

Did it include Dr. Mora?

Dr. Mora, Dr. Rogers, and twoor three others that —

Dr. Geller?

Dr. Geller.

Dr. Shropshire?

Yes, I guess so. I had forgotten that he had been

appointed. Yes, that’s right. But after the act was

passed I believe we agreed that there would be no

more -- that that was part of the agreement, as I

recall, that we would not block the confirmation.

Now, was this lobby effort -- in oppostition to

appointment or confirmation I am speaking right

now -- was this just something that you did alone or

was this done by a substantial number of members

of TOA?

Oh, I guess 40 or 50 members of TOA.

Dealing basically with their local representatives

or someone they may have known?

Exclusively.

And were some of these confirmations that you

opposed, were they rejected -- specifically Dr.

Geller and Dr. Shropshire?

I believe so.

And Dr. Mora was concerned over your objection, as

it were?

alte oh ott: al!

A-381

. No, at that -- I believe we had an agreernent at that

time that there was no -- when he was confirmed

then Dr. Rogers was confirmed, I believe there was

an agreement. I am really not sure of the specific

timing of that. It just slips my mind.

* * *

[55]

Well, is there any advantage to the person enforcing

the law if he is a member of TOA as opposed to --

. No, sir.

Are you, Richard Friedman, any more competent to

enforce the law because you are a member of TOA

than because you are not?

. No, sir, not at all.

Well, what is the rational relationship in your mind

between a four-two majority in the interest of the

people of Texas?

. There is none. I have no rational relationship. I

think any man that is on that Board, if he issworn to

uphold the law and to enforce the law, that is what

he is there for, no matter what he belongs to.

That is my question. What way does membership in

) TOA render you better able to serve than non-TOA

members?

. Not in any manner.

*_ * *

a

A-382

[68]

So your normal fee for eye examination leading to

glasses would be $17.00?

Seventeen, and of course could be more, could be

less. If we find that we need to do just a screening

exam or something, why, it would be less but if I

have to run certain tests, other tests, then it would

be more.

What tests would make it be more?

Oh, we might do tangent screen, might take some

visual scales, and there are many other things that

we might do in the office.

If you take visual scales, what additional charge is

assessed for that?

Five dollars. I take blood pressure in the office at

times and charge $5.00 for that.

Are there other tests that you have an additional

charge for?

Not really. It depends. If the patient has been

referred to me for some reason I might, for instance,

do a slit lamp examination on them and I might

charge just for that, depending on my time. I

usually charge on a fee for services basis.

Well, that is what I was asking.

Yes.

What services generated what fees is what I am

saying.

I had in our office, in every room in the office is

posted a fee for all services and ali materials.

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A-383

Q. Would it be acceptable to Mr. Oliver if I asked you to

mail a copy of that directly to the court reporter,

and we would use it, attach it to your depostion?

A. I would be perfectly all right.

MR. KEITH: Let me give you Mrs. Looke’s address

directly. Is that agreeable with you, Robert?

MR. OLIVER: Sure.

If you will do that, Dr. Friedman.

Okay.

Q. Now, your contact lens, you say, is $125.00 for the

hard?

A. I think that’s it, yes.

Q. All right. And then $175.00 is the total price to the

patient.

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A. I may be mistaken on that. We just recently went

up on our fees and it seems to me that our total fee

for two pair of contact lenses was $215.00. I believe

that is right. Now we, as most of us, have had to raise

our fees a little bit.

©

Now, what about the examination for soft?

A. Examination for soft lens is $150.00, and the total

fee is $300.00.

What soft do you use?

©

A. We use the only two that are available, Bausch and

Lomb and Hydrocurve.

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Do you have them available in your office?

A. Yes, sir.

> OP OP ©

> ©

A-384

[96]

Now, tell me about the $17.00. That’s the

examination fee?

Yes. If I have done a -- I think I told you seventeen

with the glaucoma test. It’s seventeen without the

glaucoma test. It would be another $40.00 ifIdida

glaucoma test.

I was going to ask you that.

I was wrong in my earlier testimony.

That’s the sphygmometry?

I just -- I think better when I am writing.

All right. And you perform that for persons over --

Thirty-five as a rule, unless I suspect some other

reason to.

Now, the $3.00 handling charge is for what?

It’s for handling -- I really don’t know what it is. It’s

something that we are permitted to charge our

patients, our Medicaid patients, and when we --

they cut us back so we just add iton, so that’s what it

is, just handling of the material and frame.

* * *

[99]

All right. Now --

Ten dollars is -- actually the ten and three, you can

combine those. It’s $13.00 for services connected

with the material.

Services ¢onnected with the material?

oP oP ©

A-385

Right. This has to do with the verification of the

prescription when it comes back from the

laboratory, the instructions to the patient on the

care and handling of the lenses, the dispensing fee

and whatever is taken care of in that. The $10.00 for

the lenses is the ciosest to the nearest dollar of the

pair of single vision lenses.

Then the $5.00.

The $5.00 is the assumed cost of the frame.

All right. Now, the first four items, that is, the

$17.00 and the $13.00, those are common to each eye

examination?

Yes. If I did not prescribe, I would cut it off there.

That would be it.

Would you charge $30.00 if you did not prescribe?

No.

You would charge seventeen?

Seventeen.

Okay. Now, the sphygmometry, blood pressure,

visual fields, positive-negative accommodation --

Blood pressure -- no, not positive-negative

accommodation, but blood pressure, visual fields,

maybe some other things that are not included in

the basic examination I would charge for. Just

depending. I just charge for my services.

All right.

If I have to do a complete muscle analysis, I might

charge the patient for that.

A-386

Q. Now, let’s take another -- let’s take a bifocal.

A. Okay.

MR. KEITH: Will you read this to the court reporter

and, Doctor, we will assume that I am asking the

question?

DR. ROGERS: Plus one sphere upper. Plus one add,

twenty-five bifocals, clear glass chemical-treated in

combination metal-zyl frames.

A. All metal?

DR. ROGERS: No.

A.

Talking about an AO?

DR. ROGERS: That’s fine.

A.

Oop OP ©

Again, I am not sure of the cost of the frame because

I just don’t recall. I am just assuming that it will be

about $15.00. My fee, total fee, would be sixty-nine.

All right. Now, again we would have the seven and

the ten.

Well. you’ve got fourteen there because I am

assuming that the patient is going to have

sphygmometry; bifocal, he would probably be over

35.

All right. seven, ten plus four?

Right.

Plus ten for services.

Yes.

Plus three for handling.

A-387

. Thirteen dollars for services connected with

materials, poring Ay $34.00, and then the lenses,

approximately 00; the frame, approximatel

fifteen, is thirty-five -- $69.00 total rg —

Now, do you have a record of the number of persons

you examine and do not prescribe for?

. No.

Is that a relatively small number?

’

. I'm really not sure. I’m sure there are some every

week like this, but I just couldn’t tell you how many.

Do you have any record of those that you ref

MD for treatment? . ae

. We do keep a record of this so that we are sure that

we get a report back from the MD. If we don’t get it,

we will call them and get it, but that’s the only

reason.

Dr. Friedman, can you outline or state any

disadvantages that you conceive of to there being

responsible public members on the Te

Optometry Board? si

. I would have no objection.

I understand that, but do you see any disadvantages

to a public member? ennree

. No.

Or members?

. No,I donot. I think this is the trend and I think that

one of these days there will be a public member on

the Optometry Board as well as all boards.

©

A.

A-388

Do you see any disadvantages to persons who are

merely dispensing opticians -- and I use that to

distinguish, not to otherwise -- being on the Board?

Well, I would have to think about that one. I really

never have given it any consideration in my mind. I

would rather pass that one.

Do any come to mind at this point?

No, I can’t think of any, but I don’t want tosay that I

would not have any objection to that.

Has the factionalism that has pervaded the

profession in Texas since 1945, let us say, is it fair to

say that it has occurred in the legislature and the

courts, in the governor’s office, in the

administrative agencies, and it has been both legal

and political?

I would like to say that all parties involved 10 this so-

called factionalism have had access to their day in

court, day in the legislature and so forth, and that

nobody has been denied any right to go anywhere to

do anything to appeal their case.

Well, my question was, has this factionalism

occurred in each of these forums?

There has been, I guess you could say factionalism

in all of these forums, yes, which I think is perfectly

proper.

And it has taken the legal form and also the so-

called political form?

Yes, sir, I believe that’s the democratic way.

And it has been represented by a number of so-

called four to two votes on the Optometry Board, has

it not?

5 yates ee ae : .

> OP ©

A-389

I like to think that the four-two votes represent the

opinion of various Board members as to the way

they interpret the statute.

Has there been in your experience any four-two vote

that has not followed along the lines of TOA-

non-TOA?

I don’t -- no, I wouldn’t be surprised, but I’m not

sure. I haven’t kept track of the various votes and

who voted how.

Are you aware of any?

That are not? I am not. At this moment I am not

aware. I couldn’t name any, no.

Can you cite any issue where there has been a four-

two vote other than TOA-non-TOA?

Oh, I can’t cite any issue one way or the other but I

believe that the various -- the two groups, as you put

them, have split their vote in some instances in some

matters In many ways, many times. I don’t think

that every vote is on a four and two basis or on the

basis of the association that they might belong to.

There have been many unanimous votes?

Beg your pardon?

There have been many unanimous votes?

Many unanimous votes, many four and one votes,

many abstentions, many present and not voting,

and it happens in every -- in practically every Board

meeting where one or two people will disagree and

not necessarily because they are a member of any

group. The votes are very much -- very often mixed.

* * &*

o> © P

A-390

[114]

; , a

Or an optometrist might refer a patient t

dispensing optician. That referral system conflicts,

does it not, with the mode of your practice - the

mode of practice of that of the TOA members’?

I don’t think so.

Do you refer patients to a dispensing optician?

Only if the patient asks me to.

ination

When you have completed your eye examina

and written a prescription, what do you next state to

the patient?

i i i i hoice --

If you are asking me if I give the patient ac

this is what the law says we are supposed to do -- I

must admit I am remiss. I do not.

What do you normally say to the patient?

I just say, “Do you want me to fill your

prescription?”

Or “Have a seat here and --”

“If you do, I will take you up to -- and we will let my

frame stylist show you the frames.

Do you believe that is the customary way it is

handled by the optometrists who also have an

opticianry within his establishment?

I wouldn’t say he has an opticianry. He is dispensing

to his own patients in his own office.

Okay. By a man who is dispensing to his own

patients.

Pr OP ©

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A-391

I would say that most optometrists do, but I really

can’t speak for them. This section of the Act, as you

know, is very confusing, and I don’t think the Board

has ever taken any action on it, has never asked for

an opinion on it that I know of. I believe -- I am not

even sure whether there has been a fact situation

written on it. I don’t recall one.

By “fact situation” you mean to submit that --

To Mr. Greenhill.

--to Mr. Greenhill for one of these --

Yes, so I really can’t -- as far as Iam concerned, I do

not understand the section too well and I -- until we

have it clarified by the Board, I really don’t know

what to do.

Well, could you tell the patient he has two choices:

he can have you do it or he can go elsewhere?

Not really. I don’t think very many optometrists are

doing that.

What number of patients do you recall referring toa

dispensing optician in the year 1975?

I couldn’t tell you but it was very small. Many

patients will ask me for their prescription. This is

becoming more and more frequent in my office.

And I can’t tell you how many but this is -- and I

don’t refer them to any particular one. Usually, they

have somebody in mind. They may go to Texas

State or anyplace.

Then do you tell them to come back?

For an optimetrical examination, always, yes.

©

A-392

And do you still charge on the same basis, $30.00?

No, no. If I give them a prescription, I will charge

them $5.00 to write the prescription and to verify it

when they come back to me. So it’s seventeen plus

five.

When do you charge the plus five, on their return?

No, no. When they leave the office and I tell them

that they are paying for my verification on a

prescription and that I expect them to bring it bac

to me to be sure it is like I wanted it.

-E that we are

Do you agree that this Section 515

calling about treats different optometrists

differently?

I don’t know what it does. I am not going to say that

because I don’t know, and I believe if we are going to

-- if the Board is going to act on that section, which I

assume we will have to when we get a complaint or

something, we are going to have to take some action,

we are going to have to ask for a clarification by

attorneys unless Dr. Rogers prevails in the

meantime.

A-393

[In the United States District Court

for the Eastern District of Texas]

DEPOSITION OF DR. N.J. ROGERS

(Taken January 13, 1976)

(75)

Yes. We are limiting it to legislative pressure. We

will get to --

A couple of things. One, in the nineteen sixties -- |

don’t recall what year, but there was a bill, another

bill. Let’s see. It was about 1963, I believe. There

was a bill in the legislature, but to be frank, I can’t

remember some of the provisions of it.

What did it roughly deal with?

I just don’t remember what -- I remember the 1951

bill, but this was -- wait a minute. I think it had todo

with the licensing of dispensing opticians. I believe

that’s what it was because I opposed it. TOA was in

favor of that bill, and I opposed it. I spoke against it.

That happened in the early sixties. I know it

happened after the Dallas case in 1959, and because

of what took place at that hearing, I made reference

to the Dallas case. Now, this was in the legislature.

What did they do, simply the TOA was for it and you

were against it?

Sponsoring this legislation, supporting it.

And you didn’t want opticians to be licensed?

I was opposed to the licensing of dispensing

opticians, both the independent dispensing

opticians as well as the dispensing opticians that

worked --

> ©

> ©

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A-394

For you?

Us or others in optometric offices or in

ophthalmologists offices.

i it might be unduly

You were opposed to it because it migh é

restrictive on your people. Is that basically the

reason?

’t it. I just didn’t feel that there was

ve sg po for it from the standpoint of the

protection to the public.

Now, after 1960 what happened?

is one I just made reference to was in the early

oan I don’t know whethe r it was 63 bed wr

whichever year. Then during Governor Con a

term as Governor, we had another very /

situation regarding a fight on races eer 0

State Board appointments by Governor Con lly;

namely, Dr. Geller, G-e-l-l-e-r, and Dr. Shropshire,

S-h-r-o-p-s-h-i-r-e. Those appointments —

defeated, TOA was successful in preven oe

confirmation of these men who were not — these

men were not members of TOA.

Dr. Shropshire worked for Lee Optical, didn’t he?

Yes.

And Dr. Geller worked for whom?

He had his own offices in E] Paso. Then subsequent

, to that there was another — call it a fight against

~ . ti

nfirmations of some other appointmen

the Board by Governor Connally, and Dr. Cohen of

Longview was one of those who was not confirmed

at that time.

A-395

What about Dr. M«ra?

. Dr. Mora was confirmed, and I don’t recal] whether

it was at the same time as these others or not. There

were others that were up for confirmation when Dr.

Mora was up, but I can’t recall which ones, whether

it was Geller and Shropshire or whether it was

Cohen and Mora. I just don’t recall, but there was

this fight.

And you were supporting these people, and Texas

Optometric people were Opposing their

confirmation in the Texas Senate?

Yes.

And they won with regard to those appointments?

They defeated these confirmations except Dr.

Mora’s.

Dr. Mora got appointed?

He was confirmed.

So you got one out of the four?

Well, I don’t know what you mean! got one out of the

four. One of those four were confirmed.

You were supporting all four?

Yes.

And three of them were defeated and one was

appointed, so you got one out of four.

One of the four was confirmed, that’s right. Only one

of the four.

And you were supporting all four of them?

o> © pP

>

A-396

Yes. Now, that has to do with the legislature.

That is all that has to do with the legislature?

Then, of course, the 1969 bill that was introduced.

What happened with regard to the legislative

pressure against you with regard to the 1969 bill?

The TOA -- I can’t be sure whether they introduced

the bill. Let me think. I don’t know whether they

went to Governor Preston Smith after they

introduced the bill or before, but there was a bill

introduced -- not by me or by my associates of the

people that practice in the manner that we did.

Governor Smith in view of the problem on the State

Board appointments and the inability to get

appointees confirmed, which left the State Board

inoperative for several years because during the

time that two of the members were appointed and

were serving during the interim between sessions,

they were legally entitled to serve as Board

members. The membership was three non-TOA

members and two TOA members, but the TOA

members refused to meet with us. These

appointments were made by Governor Connally,

and they absolutely refused to meet because they

did not have the majority of members of the Board.

The Board was unable to give State Board

examinations for a period of almost two years.

There was always a threat that whoever might be

appointed in the future could not be confirmed

because of the fighting between these two groups.

Q. What was the makeup? Who were they?

A. Dr. Shropshire was one.

Q. And you?

Q.

A.

> O> Oo > © >

A-397

And Dr. Geller and I.

You all were the three non-TOA members?

Non-TOA.

Who were the others?

One was Dr. Gill and Dr. Woods, Ira Woods.

And you all couldn’t get anything done?

The refused to meet because th

> re ey did

majority control. . ese

MR. KEITH: Which defeated a quorum.

* * * ,

[102]

Well, would you say that if four mem

embers of th

a etn ~s a were in the Kiwanis Club,

e Kiwanis Club would h :

ealismenier haces uld have the controi over

No, because the Kiwanis Club woul

economic interest in the practice of rte

whereas, the four TOA members of that Board have

a very strong and distinct economic interest, which

has been established. The facts have been

established down through the years. This is the

difference, the fact they are members of TOA, and

the law -- and they have wanted this provision in the

statute that they have control of that Board, and

because there is the competitive factor and the two

factions in optometry, in Texas as well as other

states, but we won't go into that because it is

nationwide, and because there is this economic fight

and has been, this economic fight between these two

A-398

factions, the TOA group and the non-TOA down

through the years, this is why they started -- full

control. It’s an economic control.

Q. Are you in competition as far as optometry goes

with any of the present Board members?

A. Yes.

A-399

CODE of ETHICS

and

SUPPLEMENTS

RULES of PRACTICE

American Optometric Association

7000 Chippewa Street

St. Louis, Missouri 63119

A-400

DX-25

The Code of Ethics of the American Optometric

Association sets forth briefly certain basic duties of its

members, and it reaffirms the benevolent and humane

fundamental purpose of the profession of optometry: To

protect and conserve and improve human vision.

CODE of ETHICS

It Shall Be the Ideal, the Resolve, and the Duty of the

Members of the American Optometric Association:

TO KEEP the visual welfare of the patient

uppermost at all times; |

TO PROMOTE in every possible way, in

collaboration with the Association, better care of

the visual needs of mankind;

TO ENHANCE continuously their educational

and technical proficiency to the end that their

patients shall receive the benefits of all

acknowledged improvements in visual care;

TO SEE THAT no person shall lack for visual care,

regardless of his financial status;

TO ADVISE the patient whenever consultation

with an optometric colleague or reference for other

professional care seems advisable;

TO HOLD in professional confidence all

information concerning a patient and to use such

data only for the benefit of the patient;

TO CONDUCT themselves as exemplary citizens;

TO MAINTAIN their offices and their practices in

keeping with professional standards;

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TO PROMOTE and maintain cordial and

unselfish relationships with members of their own

profession and of other professions for the exchange

of information to the advantage of mankind.

Adopted by the House of Delegates of the American

Optometric Association, at Detroit, Michigan, June

28, 1944.

SUPPLEMENTS

I. BASIC RESPONSIBILITIES

OF AN OPTOMETRIST

Section A. THE WELFARE OF HUMANITY

A profession has its prime object the service it can

render to humanity; reward or financial gain should be

a subordinate consideration. The practice of optometry

is a profession. In choosing this profession an individual

assumes an obligation to conduct himself in accord with

its ideals.

Section B. SELF- IMPROVEMENT

It is the duty of every optometrist to keep himself in

touch with every modern development in his profession,

to enhance his knowledge and proficiency by the

adoption of modern methods and scientific concepts of

proven worth, and to contribute his share to the general

knowledge and advancement of his profession by all

means in his power. All these things he should do with

that freedom of action and thought that provides first

for the welfare of the public within the scope and limits

of his endeavor.

Section C. SCIENTIFIC ATTITUDE

An optometrist should approach all situations with a

scientific attitude, weighing all that is new against the

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present fund of knowledge and his experience, and

accepting only that which is truth as nearly as he can

ascertain.

Section D. PERSONAL DEPORTMENT

An optometrist should be an upright man.

Consequently he must keep himself pur. . character,

must conform to a high standard of morals, and must be

diligent and conscientious in his studies.

Section E. OPTMETRISTS AS PUBLIC

CITIZENS

Section E. OPTOMETRISTS AS PUBLIC

CITIZENS

An optometrist should bear his full part in supporting

the laws of the community and sustaining the

institutions that advance the interests of humanity.

SUPPLEMENTS

I. BASIC RESPONSIBILITIES

OF AN OPTOMETRIST

Section A. THE WELFARE OF HUMANITY

A profession has for its prime object the service it can

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II. RELATIONS BETWEEN AN

OPTOMETRIST AND HIS PATIENTS

Section A. CONFIDENTIAL ASPECTS OF

PATIENT RELATIONS

Patience and delicacy should characterize all the acts

of an optometrist. The confidence concerning individual

or domestic life entrusted by a patient to an optometrist

and the defects of disposition or flaws of character

observed in patients during attendance should be held

as a trust and should never be revealed except when

imperativly required by the laws of the state.

Section B. THE PRESENCE OF A

PATHOLOGICAL CONDITION SHOULD BE

COMMUNICATED BY AN OPTOMETRIST TO

HIS PATIENT

An optometrist should give to the patient a timely

notice of manifestations of disease. He should neither

exaggerate nor minimize the gravity of the patient’s

condition. He should assure himself that the patient or

his family has such knowledge of the patient’s condition

as will serve the best interests of the patient.

Section C. PATIENTS MUST NOT BE

NEGLECTED

An optometrist is free to choose whom he will serve.

He should respond to any request for his assistance in an

emergency. Once having undertaken a case formally, an

optometrist shall not abandon or neglect the patient.

Frequently the immediate, prior need of the patient for

the professional services of another must be

recommended by the optometrist. In any event, he shall

not withdraw from a case until a sufficient notice has

been given the patient or his family te make it possible to

secure other professional services.

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Section D. COMPENSATIONS AND FEES

The fee charged the patient is determined by the skill,

knowledge, and responsibility of the optometrist.

Additional factors are the time and overhead costs, and

the relative value of the service given.

Section E. THE RELATIONS OF SERVICES

AND MATERIALS

Materials utilized by the optometrist are charged to

the patient on the basis of their costs to the optometrist.

Section F. GRATUITOUS SERVICE

The poverty of a patient and the humanitarian,

professioanl obligations of optometrists should

command the gratuitous services of an optometrist.

Other individuals and endowed institutions and

organizations have no claim on the optometrist for

gratuitous services.

Section G. CONTRACT PRACTICE

It is unethical for optometrists to enter into contracts

which impose conditions that make it impossible te deal

fairly with the public or fellow practitioners in the

locality.

Section H INTERFERENCE OF UNRELATED

PRACTICES

The acts which an optometrist performs and which

are outside the confines of his profession must not

mislead the public as to the scope of this profession, and

must not be inimical to the public welfare or to that of

his fellow practitioners.

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III.RESPONSIBILITIES TO OTHER

OPTOMETRISTS AND TO THE PUBLIC

Section A. UPHOLD THE HONOR OF THE

PROFESSION

The obligation assumed upon entering the profession

requires the optometrist to comport himself as a

gentleman, and dernands that he use every honorable

means to uphold the dignity and honor of his vocation, to

exalt its standards and to extend its sphere of

usefulness.

Section B. OPTOMETRIC SOCIETIES

In order that the dignity and honor of the optometric

profession may be upheld, its standards exalted, its

sphere of usefulness extended, and the advancement of

optometric science promoted, an optometrist should

associate himself with optometric societies. He should

contribute his time, energy, and means to the end that

these societies may represent the ideals of the

profession.

Section C. ADVERTISING

The following are deemed, among others to be unethical

and to constitute unprofessional conduct in accordance

with the laws and regulations of each particular state.

Soliciting patients directly or indirectly, individually

or collectively through the guise of groups, institutions,

or organizations.

Employing solicitors, publicity agents, entertainers,

lecturers, or any mechanical or electronic, visual or

auditory device for the solicitation of patronage.

Advertising professional superiority, or the

performance of professional services in a superior

manner.

Any advertising or conduct of a character tending to

deceive or mislead the public.

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Advertising one or more types of service to imply

superiority or lower fees.

Holding one’s self forth to the public under the name

of any corporation, company, institution, clinic,

association, parlor, or any other name than the name of

the optometrist. |

Holding one’s self forth as possessed of, or utilizing

exclusive methods of practice or peculiar styles of

service.

Displaying certificates, diplomas, or similar

documents unless the same have been earned by the

optometist.

Guaranteeing or warranting the results of

professional services.

Advertising of any character which includes or

contains any fee whatsoever, or any reference thereto, or

any reference to the cost to the patient, whether related

to that examination or the cost or fee for lenses, glasses,

frames, mountings, or any other optometric services,

article, or device necessary for the patient.

Offering free examination or other gratuitous

services, bonuses, premiums, discounts, or any other

inducements.

Permitting the display of his name in any city,

commercial, telephone, or other public directory; or

directory in the lobby of public halls in any office or

public building, using any type which is in any way

different from the standard size, shape, or color of the

type regularly used in such medium.

Permitting his name to be put in any public directory

under a heading other than “Optometrist.”

Printing professional cards, billheads, letterheads

and stationery with iilustrations or printed materials

other than his name, title, address, telephone number,

office hours, and specialty, if any.

Displaying large, glaring or flickering signs, or any

sign or other depiction containing as a part thereof the

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representation of an eye, eyeglasses, spectacles, or any

portion of the human head.

Using large lettering or other devices or unusual

depictions upon the office doors or windows.

Section D. PATENTS

It is unprofessional for an optometrist to exploit a

patent for lenses, appliances, or instruments used in the

practice of optometry in such a way as to deprive the

public of its benefits, either through refusal to grant

licenses to competent manufacturers who can assure

adequate procuction and unimpeachable quality, or

through exorbitant demands in the form of royalty; or

for similar forms of monopolistic control in which the

interests of the public are exploited.

Section E. REBATES

It is unprofessional and unethical to accept rebates on

prescriptions, lenses, or optical appliances used in the

practice of optometry.

Section F. SAFEGUARDING THE

PROFESSION

An optometrist should expose without fear or favor,

before the proper optometric tribunals, corrupt or

dishones conduct of members of the profession. All

questions affecting the professional reputation or

standing of a member or members of the optometric

profession should be considered only before proper

optometric tribuanls in executive sessions, or by special

or duly appointed committees on ethical relations.

Every optometrist should aid in safeguarding the

profession against the admission to its ranks of those

who are unfit or unqualified because deficient either in

moral character or education.

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Section G. PROFESSIONAL SERVICES OF

OPTOMETRISTS TO EACH OTHER

An optometrist should always cheerfully and

gratuitously respond with his professional services to

the call of any optometrist practicing in his vicinity, or

of the immediate family dependents of optometrists.

SectionH. CONSULTATIONS OF OPTOME-

TRIST SHOULD BE ENCOURAGED

In doubtful or difficult conditions where the services

of another may be required, the optometrist should

request consultations.

Section I. CONSULTANT AND ATTENDANT

When an optometrist has been called on a case as a

consultant, it is his responsibility to insure that the

patient be returned to the original optometrists for any

subsequent care that the patient requires.

Section J. CRITICISM TO BE AVOIDED IN

CONSULTATION

The optometrists, inhis relations with a patient under

the care of another optometrist, should observe the

strictest caution and reserve; should give no derogatory

hints relative to the nature and care of the patient’s

disorder; nor should the course of conduct of the

optometrist directly or indirectly tend to diminish the

trust reposed in the attending opotmetrist. In

embarrassing situations or wherever there may seem to

be a possibility of misunderstanding with a colleague,

the optometrist should always seek a personal interview

with his fellow.

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Section K. GENERAL PRACTITIONER

RESPONSIBLE

When the general practitioner of optometry refers a

patient to another optometrist, the former remains in

charge of the case and is responsible for the care of the

patient until properly dismissed.

Section L. SERVICES TO PATIENT OF

ANOTHER OPTOMETRIST

An optometrist should never take charge of, or

prescribe for, a patient who is under the care of another

optometrist, except in an emergency, until after the

other optometrist has relinquished the case or has been

properly dismissed.

Section M. CRITICISM OF A COLLEAGUE TO

BE AVOIDED

When an optometrist succeeds another optometrist in

the charge of a case, he should not make comments on, or

insinuations regarding the practice of the one who

preceded him. Such comments or insinuations tend to

lower the esteem of the patient for the optometric

profession and so react against the critic.

Section N. A COLLEAGUE’S PATIENT

When an optometrist is requested by a colleague to

care for a patient during his temporary absence; or

when, because of an emergency, he is asked to see a

patient of a colleague, the optometrist should treat the

patient in the same manner and with the same delicacy

as he would have one of his own patients cared for under

similar circumstances. The patient should be returned

to the care of the attending optometrist as soon as

possible.

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Section O. ARBITRATION OF DIFFERENCES

BETWEEN OPTOMETRISTS

Should there arise between optometrists a difference

of

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