State ex rel. State Board of Examiners in Optometry v. Kuhwald

389 A.2d 1277, 1978 Del. LEXIS 697
CourtSupreme Court of Delaware
DecidedMay 16, 1978
StatusPublished
Cited by4 cases

This text of 389 A.2d 1277 (State ex rel. State Board of Examiners in Optometry v. Kuhwald) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. State Board of Examiners in Optometry v. Kuhwald, 389 A.2d 1277, 1978 Del. LEXIS 697 (Del. 1978).

Opinion

HERRMANN, Chief Justice:

This is an appeal from the denial by the Court of Chancery of a petition to enjoin the defendant from engaging in the practice of optometry.1

I.

The Trial Court found the following facts as being undisputed:

“Defendant is an optician who supplies contact lenses pursuant to a prescription written by an ophthalmologist. After receiving the prescription from the ophthalmologist, Defendant performs certain acts in examining and measuring the eye and obtaining data necessary for the preparation of the contact lenses. The lenses are actually prepared by another party (a laboratory) to the specifications of Defendant. Defendant fits the contact lenses and instructs the wearer in their use.
“In fitting the wearer, Defendant makes use of the prescription written by the ophthalmologist which shows the refractive error or correction for spectacles. He uses certain instruments including a corneal microscope, keratometer and ker-atascope. He also inserts a fluroesciein dye under the eyelid. Defendant also takes the patient’s medical history although it presumably has been already taken by the ophthalmologist.
“In order to obtain the data necessary for the Defendant to order the contact lenses from the laboratory certain measurements and computations are made by Defendant.
“Defendant also instructs the wearer in the procedures for handling, inserting and removing the contact lenses. Defendant also advises the wearer to contact him by telephone if any problems occur and to go back to the ophthalmologist for a checkup after he is able to wear the contact lenses for 9 hours. Many patients return to their ophthalmologist, some do not.
“Defendant is licensed as an optician but is not licensed as an optometrist.”

Upon the basis of the foregoing facts, and the application thereto of 24 Del.C. § 2101(a),2 the Trial Court concluded [1279]*1279that, in applying contact lenses, the defendant was engaged in the practice of optometry under § 2101(a)(3). We agree.

But the Trial Court held that the defendant is exempted from the certification and licensing requirements of the Optometry Practice Act by virtue of the provisions of 24 Del.C. § 21173 and 24 Del.C. 1703(e)(7),4 because the defendant’s services are rendered “under the supervision and control of a physician or surgeon, licensed” under the Medical Practice Act. The Trial Court concluded:

“The two sections of Title 24 Delaware Code must be read together because of the settled rule of law that when the legislature enacts a statute which specifically refers to an existing statute, the later act brings into itself by reference, the terms of the earlier act. * * *
“These two sections must also be read together because 24 Del.C. § 1703(e)(7) standing alone is ambiguous and the two sections are in pari-materia. Chapter 17 and Chapter 24 are chapters of the same title of the Delaware Code and both deal with the licensing of health personnel.
“When 24 Del.C. § 2117 and 24 Del.C. § 1703(e)(7) are read together it is clear that the General Assembly intended to exempt from the provisions of the Optometry Act a person who applies contact lenses as long as he acts under the supervision and control of a licensed ophthalmologist. * * *”

II.

We are unable to agree that the defendant is exempt from the certification and licensing provisions of the Optometry Practice Act under either § 2117 thereof, or § 1703(e)(7) of the Medical Practice Act, or both.

The defendant is not exempt under § 2117 for the obvious reason that he is “not licensed to practice medicine and surgery in this State under Chapter 17” (the Medical Practice Act).

And the defendant is not exempt from the requirements of the Optometry Practice Act by reason of § 1703(e)(7) of the Medical Practice Act. The first sentence of § 1703(e)(7) provides, in effect, that an unlicensed person who performs medical, surgical or health services will not be deemed to be practicing medicine in violation of the licensing requirements of Chapter 17 if such services are performed under the supervision and control of a licensed physician or surgeon. The second sentence of § 1703(e)(7) provides that the first sentence was not intended to change or modify legitimate practices prevailing in optometry and ophthalmology at the time § 1703(e)(7) was enacted, i. e., July 5, 1971.

[1280]*1280The intent of the General Assembly in enacting § 1703(e)(7) appears in the purpose clauses of 58 Del. L. c. 212 as follows:

“WHEREAS, it has been recognized by physicians and by laymen that there is a shortage of medical personnel, and that many persons possess backgrounds and training which could qualify them for training as physician’s assistants; and
“WHEREAS, the introduction of the concept of a physician’s assistant has been challenged as ‘practicing medicine’ without the appropriate license; and
“WHEREAS, it is the purpose of this Act to provide a means by which paramedical personnel, such as nurses, physician assistants and others performing limited medical services may be utilized in freeing physicians of time-consuming chores more easily handled by the paramedical personnel.”

It thus clearly appears that the defendant’s situation is governed by § 2117, the specific Statute applicable to the practice of optometry, and not § 1703(e)(7), a general Statute authorizing unlicensed “paramedical personnel, such as nurses, physicians assistants and others” to perform “limited medical services”. This result is impelled, too, by the general statutory scheme of Title 24 regulating various health-related professions and occupations. To construe the various licensing laws of Title 24 as being in pari materia with § 1703(e)(7) and, on that basis, conclude as did the Trial Court that unlicensed persons can lawfully perform under supervision all health-related services including those which require licensing under Title 24, would mean this: anyone working under a licensed physician’s supervision could not only practice optometry without a license but could also lawfully perform without a license any of the services which, under the various Chapters of Title 24, constitute: the practice of podiatry (Chapter 5); the practice of chiropractic (Chapter 7); the practice of dentistry and oral hygiene (Chapter 11); the practice of nursing (Chapter 19); the practice of pharmacy (Chapter 25); the practice of physical therapy (Chapter 26); the practice of psychology (Chapter 35); the practice of speech

pathology and audiology (Chapter 37); and even the practice of medicine, surgery and osteopathy (Chapter 17).

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Bluebook (online)
389 A.2d 1277, 1978 Del. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-board-of-examiners-in-optometry-v-kuhwald-del-1978.