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.
>
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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
rt >
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.
> ©
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.
©
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 ©
©
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 --
> ©
> ©
> © Pp ©
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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