OPTOMETRY - SERVICES AS WITHIN THE DEFINITION OF HEALTH CARE SERVICES UNDER RCW 48.44.010

OPTOMETRY - SERVICES AS WITHIN THE DEFINITION OF HEALTH CARE SERVICES UNDER RCW 48.44.010.

The services rendered by a licensed and qualified optometrist are not properly included as "health care services" within the definition of RCW 48.44.010.

                                                                  - - - - - - - - - - - - -

                                                              September 13, 1960

Honorable William A. Sullivan
Insurance Commissioner
Insurance Building
Olympia, Washington                                                                                           Cite as:  AGO 59-60 No. 141

Dear Sir:

            By letter previously acknowledged you have requested an opinion from this office on the following question:

            Are the services rendered by a licensed and qualified optometrist properly included as "health care services" within the definition of RCW 48.44.010 (1)?

            We answer your question in the negative.

                                                                     ANALYSIS

            RCW 48.44.010 (1) provides:

            "For the purposes of this chapter:

            "(1) 'Health care services' means and includes medical, surgical, hospital and other therapeutic services."

            This necessitates an inquiry into the nature of services rendered by an optometrist.  Chapter 18.53 RCW is known as the "Optometry Law," and RCW 18.53.010 provides:

           "Any person shall be deemed to be practicing optometry within the meaning of this chapter, who shall in  [[Orig. Op. Page 2]] any manner, except as provided in RCW 18.53.040, first, display any sign, circular, advertisement or device purporting or offering to in any manner examine eyes, test eyes, fit glasses, adjust frames or setting himself or herself forth as an optometrist, optician, specialist, optical specialist, eyesight specialist or refractionist, with intent to induce people to patronize himself, herself, or any other person; second, who shall make in any manner a test or examination of the eye or eyes of another, to ascertain the refractive, muscular or pathological condition thereof; third, who shall in any manner adapt lenses to the human eye for any purpose either directly or indirectly."

            Were we free to consider the broad meaning conveyed by the words "health care services" in the abstract, we might well decide that the services rendered by an optometrist qualify.  Admittedly, good vision achieved through the services of an optometrist is closely related to health, and this relationship has been recognized by the Washington supreme court.  State ex rel. Standard Optical Co. v. Superior Court, 17 Wn. (2d) 323, 328, 135 P. (2d) 839 (1943).  However, we are not free to give the words "health care services" their broadest generic meaning, for the reason that the legislature, in enacting RCW 48.44.010 (1), supra, has told us that the phrase means "medical, surgical, hospital and other therapeutic services."  It is within the framework of this statutory definition that we must seek the answer.

            We will first dispose of the words "surgical" and "hospital."  The services of an optometrist do not involve surgery nor the use of hospitals, and no reasonable contention can be made that they do.  This leaves the phrases "medical" services and "other therapeutic services" remaining of the statutory definition.

            1. Optometrical services are not medical services.

            The history of optometry is incompatible with its characterization as a branch of medicine.

            Spectacle making, as a skilled craft, is of ancient origin, extending back at least to the beginning of the 14th century.  The techniques involved in making spectacles evolved quite apart from medical science, and the phenomenon of a doctor of medicine also prescribing glasses is of comparatively recent origin, dating from the work of Dr. F. C. Donders, a 19th century physician, who was largely  [[Orig. Op. Page 3]] responsible for the development of refraction as a science.  The end product of these distinct processes of evolution are: (1) On the one hand, both the optometrist or "refracting optician" who examines eyes, and the optician or "dispensing optician" who manufactures lenses.  These professions trace their history back to the guilds of spectacle makers.  (2) And on the other hand, the ophthalmologist or oculist, whose history is the history of medical science as such.  See Arrington, History of Optometry, p. 24 (1929), 16 Encyclopedia Britannica, Optometry, p. 829 (1960, 20 Encyclopedia Americana, Optometry, p. 717 (1954).  The history of optometry is also incidentally treated in the sections of this discussion which follow.

            The weight of authority supports the view that optometry is not a branch of medicine.

            Dr. Theodore F. Schaegel, Director of Research of the Department of Ophthalmology, School of Medicine, Indiana University, writes in 16 Encyclopedia Britannica, Optometry, p. 829 (1960) as follows:

            "Optometry is a nonmedical profession concerned with determining the refraction of the eye by methods that can be applied without the use of drugs, and with the supplying of glasses.  The optometrist also may administer eye exercises and fit contact lenses.  Optometry is not concerned with diseases of the eye or with the practice of medicine and surgery.

            "The optometrist should not be confused with the ophthalmologist (also called oculist), who is a physician with training in everything pertaining to the eye."  (Emphasis supplied.)

            Several occasions have arisen in which this view has been given recognition by the courts.  The case of Silver v. Lansburgh & Bro., 111 F.2d 518 (D.C. Cir. 1940), was brought to determine if a corporation could employ an optometrist to offer optometrical services to the public on its behalf.  In reaching the decision that an optometrist could be so employed, the court quotes with approval from Arrington's History of Optometry in saying, at p. 519:

            "Optometry is said by a well known writer on the subject not to be a part of medicine, 'either by inheritance, basic principles, development or practice'.  It is 'an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times.  It does not treat the eye, whether  [[Orig. Op. Page 4]] in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye'."

            The court in the Silver case, supra, also quotes with approval from the case of New Jersey State Board v. Kresge Co., 113 N.J.L. 287, 174 Atl. 353, 357, where the New Jersey supreme court said:

            "'Oculists and ophthalmologists pursue a calling quite distinct from that of optometrists.  The first has relation to the practice of medicine and surgery in the treatment of diseases of the eye, and the second to the measurement of powers of vision, and the adaptation of lenses for the aid thereof.'"

            The case of Sachs v. Board of Registration in Medicine, 300 Mass. 426, 15 N.E. (2d) 473 (1938), was brought to determine if a physician were practicing medicine if he limited his practice exclusively to optometry.  In holding that the practice of optometry is not the practice of medicine, the court said:

            ". . . Optometry in its origin and nature is more akin to the physical science of optics than to the science of medicine.  Its emphasis today is upon supplying physical means to aid the bodily powers rather than upon the cure of disease.  In the recent case of McMurdo v. Getter, 298 Mass. 363, 368, decided after the entry of the final decree in this case, it is said that 'Undoubtedly the fitting and sale of eyeglasses began as a trade and not as a profession.'  Indeed the whole line of reasoning in that case, which was decided after careful consideration and wide search into the authorities, is inconsistent with the theory that optometry as now defined in this Commonwealth has been and now is a part of the practice of medicine.  That case proceeds upon the theory that optometry acquired its present professional status solely by force of the statutes expressly relating to that particular subject and not as a branch of the practice of medicine."  (p. 431)

            The Massachusetts court then lists some twelve cases from other jurisdictions supporting this view.

            In the case of State ex rel. Harris v. Kindy Optical Co., 235 Wis. 498, 292 N.W. 283 (1940), the Wisconsin court also held that the  [[Orig. Op. Page 5]] practice of optometry is not the practice of medicine.  At p. 501 of its opinion the court said:

            ". . . Optometry is readily distinguished from a profession in the practice of which diseases of the eye are treated.  It is a mechanical art requiring skill and knowledge of the use of instruments designed to measure and record the errors and deviations from the normal found in the human eye.  Although certain standards of education are prescribed by the statute, optometry is not a part of the practice of medicine. . . ."

            We have been able to find only one case in which it is affirmatively stated that optometry is a part of the practice of medicine.  This is the Colorado case of Bebber v. Fisher, 106 Colo. 197, 102 P. (2d) 741 (1940), in which the court at p. 200 makes the gratuitous statement that, "It is undisputed that the practice of optometry is but one branch of the practice of medicine."  No authority is cited for this dictum, and in view of the fact that it is contrary to the history of the two professions as well as to the principles and practice of each, it must be taken for an innocent misstatement.

            2. Optometrical services are not therapeutic services.

            The word "therapeutic" is uniformly defined by authorities as being related to therapeutics or the treatment of disease; curative.

                    Source           Definition

Webster's New Int'l DictionaryOf or pertaning to the healing

   Unabridged, (2nd ed. 1949)              art; concerned with remediesfor diseases; curative.

11 Oxford English Dictonary                 Of or pertaining to the healing

   (1933)                                                                       of diseases.

Stedmans' Medical Dictionary               Relating to therapeutics, or

   (12th ed. 1934)                                             the treatment of disease

                                                                                    curative.

New Gould Medical Dictionary             Pertaining to therapeutics;

   (2nd ed. 1956)                                              curative.

Dorland's Illus. Med. Dictionary            1. Pertaining to therapeutics,

   (23rd ed. 1957)                                             or to the art of healing.

                                                                                    2. Curative.

             [[Orig. Op. Page 6]]

            An optometrist does not treat diseases.  If he discovers a pathological condition in the eye, he can refer the case to an ophthalmologist, nothing more.  See, e.g. Williamson v. Lee Optical Co., 348 U.S. 483 (1955), where the United States Supreme Court said:

            "An ophthalmologist is a duly licensed physician who specializes in the care of the eyes.  An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of the eye, and fills prescriptions for eyeglasses. . . ." (p. 486)

            Other cases giving recognition to the fact that an optometrist does not treat diseases of the eye are Evers v. Buxbaum, 253 F.2d 356 (D.C. Cir. 1958); Silver v. Lansburgh & Bro., 111 F.2d 518 (D.C. Cir. 1940); State ex rel. Harris v. Kindy Optical Co., 235 Wis. 498, 292 N.W. 283 (1940); and Sachs v. Board of Registration in Medicine, 300 Mass. 426, 15 N.E. (2d) 473 (1938), all of which were discussed above except the Evers case.

            It could be plausibly argued that the words "therapy" and "therapeutic" have come to have a broader meaning in common parlance, and need not be restricted to relate only to the treatment of disease as such.  Such an argument could cite the modern phenomena of "work therapy," "voice therapy," "music therapy," and the like, which may or may not be involved in the treatment of a diseased organism as such.  This argument, if it has any validity at all, carries with it a built-in and fatal defect.  The rule of ejusdum generis requires that where a general term follows an enumeration of more specific terms, the general term is not to be construed in its widest sense, but will be construed to include only things of the same general kind or class as those specifically mentioned.  See, e.g. State ex rel. Gilroy v. Superior Court for King County, 37 Wn. (2d) 926, 226 P. (2d) 882 (1951); State v. Eberhart, 106 Wash. 222, 179 Pac. 853 (1919).  "Medical," "surgical" and "hospital" services are all closely related to the treatment of disease.  The word "therapeutic," in its formal sense, also relates to the treatment of disease.  The rule of ejusdum generis would, therefore, assign that meaning to the term, and would preclude a broader meaning, if, in fact, there is one.

            We conclude that optometric services are not "medical" services, are not "surgical" services, are not "hospital" services, and are not "therapeutic" services.  It necessarily follows, then, that optometric services are not "health care services" as that term is defined in RCW 48.44.010 (1).

             [[Orig. Op. Page 7]]

            Nothing said herein is inconsistent with the case of State ex rel. Standard Optical Co. v. Superior Court, supra.  That case holds that a corporation cannot engage in the practice of optometry, and that a corporation employing licensed optometrists to render optometric services to the public would be so engaged.  In reaching its decision, the court makes several declarations concerning optometry in Washington that would be of considerable aid in answering other questions relating to optometry, but which do not affect the matter at hand.  Thus, our court has declared that in Washington optometry is a skilled, even learned, profession, the practice of which affects the public health and welfare.  However, this is not the equivalent of saying that optometrists render medical services, or that optometrists treat diseases.

            We trust that the above has been of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

S. FRED BRUHN
Assistant Attorney General