BD. OF EXAMINERS IN OPTOMETRY v. Spitz

COLE, Judge. The basic question we are asked to decide in this case is whether the activities of an optician in fitting contact lenses constitute the practice of optometry and is therefore prohibited by statute in this State. The issue arose as a result of a suit for declaratory and injunctive relief filed by the Board of Examiners in Optometry of the State of Maryland and Arthur A. Marshall, Jr., the State’s Attorney for Prince George’s County (hereinafter referred to jointly as the Board) against Richard Spitz, Jr., claiming that Spitz was engaged in the unlawful practice of optometry. The Circuit Court for Prince George’s County heard the complaint and rendered its decision, ordering that Spitz be and is hereby enjoined from directly or indirectly engaging in the practice of optometry or ophthalmology as hereinbefore indicated.

Except when acting under the direct professional supervision of a qualified ophthalmologist or optometrist the Respondent may not use his independent judgment, discretion, or any information not ⁴⁶⁸ obtained directly from standard measurements and standard tables to determine curvatures, powers, thicknesses, or the optical characteristics of contact lenses. The Board appealed and Spitz noted a cross-appeal. Jointly the parties petitioned this Court for a writ of certiorari which we granted. To place the issue in proper focus we summarize the facts as found by the trial court.

Spitz is an optician "who fits contact lenses. He was trained at a Florida laboratory and, in addition to working as an optician, he teaches contact lens fitting to residents in ophthalmology at Maryland General Hospital. Spitz does not fit a customer with contact lenses unless he first has a prescription for contact lenses from a physician. This prescription must contain the refractive power that would be necessary to correct the customer’s vision if eyeglasses were worn and indicate that the physician has approved contact lenses for the patient.

The fitting process used by Spitz may be divided into two phases: the lens selection and the assessment and adjustment of the lenses that have been selected. In selecting the lenses, Spitz begins by using a keratometer (an optical instrument through which the cornea can be viewed) to determine the vertical and horizontal shape of each cornea (the transparent part of the external coat of the eye covering the iris and the pupil). By adjusting this device, Spitz obtains measurements reflecting the surface curvature of the central area of the cornea. If the horizontal and vertical readings are the same, the cornea is spherical in shape.

If the two readings differ, the cornea is aspherical and the customer has an astigmatism (an aberration of the optical system in which the image of a point is spread out and one’s vision is blurred). Spitz then will determine what ⁴⁶⁹ type of lens the customer will receive and formulate the specifications for the lenses. 1 There are two basic methods of determining these specifications: (1) the measurements and standards method (where measurements of various aspects of each eye are taken with the keratometer and millimeter ruler, and these measurements are related to standard tables or norms); and (2) the trial lens or diagnostic lens method (where a series of lenses with known specifications are tested on the patient’s eye until the best fit is produced by systematic trial and error). A combination of the two methods also is used whereby the information from the keratometer and ruler measurements is used to select the initial diagnostic lens; after the initial lens is chosen, additional diagnostic lenses are compared with that initial lens. Spitz uses primarily the measurement and standards technique, although on occasion he does use a combination of the two methods.

In fitting the contact lenses, several variables must be considered. For instance, the ophthalmologist generally will write a prescription based on spectacle lens power. This must be converted to the exact contact lens power by using standard tables and some general rules which are effective in most, but not all, cases. If, as often occurs, the central curvature of the cornea is not spherical, then the lens does not always fit according to the keratometric readings and some judgment is involved in converting spectacle power to contact lens power.

The base curve (a posterior optical zone radius) corresponds to the optic zone of the lens and ideally is parallel to the curve of the central optical section of the cornea. If the central cornea is aspherical some judgment must be exer ⁴⁷⁰ cised in determining the base curve from the keratometric readings. Selecting the number of peripheral curves—whether the lens is to be a bi-curve or tri-curve lens—and the radius of the curves is to an extent arbitrary, although most fitters follow certain general rules. Spitz testified that he uses standard tables in determining the number of peripheral curves and the radius of the peripheral curve.

Also, specification of the blend (the type of junction between two adjacent zones—usually the junction between the base curve and peripheral curve) is rather arbitrary. Three measurements are important in determining the lens diameter; a vertical measurement using a metric ruler from the lower lid to the upper lid, a horizontal measurement of visible horizontal iris diameter, and keratometric measurements on the assumption that lenses for steeper corneas are smaller and lenses for flatter corneas are larger. Other factors might affect lens diameter. For example, some authorities feel that lid tension should be considered.

If the lids are loose, then a larger than normal lens is required. Finally, center thickness is an important dimension. If the lens is too thin, it will be too flexible and unstable and could warp on the eye; if the lens is too thick, it will be too heavy and will not fit properly. The correct thickness is based partly on the power, partly on the geometry of the lens, and partly on the lens material.

Often the calculations of lens thickness are left to the laboratory and, if so, the manufacturer will follow its own recommended thickness table. Spitz testified that he determines the thickness of lenses by using standards supplied by the manufacturer. The assessment and adjustment phase commences after the initial lenses have been obtained by the fitter. At the customer’s second visit, Spitz inserts the first lens in one of the person’s eyes and, after instruction, the customer inserts the second lens.

Spitz then determines whether the contact lenses fit properly. He introduces fluorescein dye ⁴⁷¹ (a nonharmful vegetable derivative) into the eye and, after it mixes with the tears, he views the tear flow between the lens and the corneal tissue by using a Burton lamp (which produces ultraviolet light that fluoresces the dye). The purpose of the procedure is to determine that there is sufficient tear flow between the lens and the corneal tissue to provide the cornea with adequate oxygen and nutrients and to dispose of metabolic wastes. If the contact lens is not fitting properly, Spitz will make certain adjustments.

For instance, he might find it necessary to modify the base curve of the lens, making that portion of the lens covering the optical zone of the cornea either flatter or steeper. Such changes cannot be made to this initial lens; thus, a new lens with the new base curve must be substituted. In that case, the lenses are no longer fit based solely on the keratometric readings—“on k.” 2 After making any necessary changes in the lenses, Spitz gives the customer detailed instructions on how to insert, remove, and care for the lenses and sets up a wearing schedule for the customer. In> one week the customer returns for the third visit.

Spitz again will examine the eye with the dye and Burton lamp; however, he also will use a slit-lamp, or biomicroscope, to view the corneas. This device is a horizontal microscope used to detect whether the contact lens has affected the tear flow to the cornea. It also will reveal whether the lens has caused a pathological or harmful condition in the eye. If such a condition is detected, Spitz will send the customer back to the referring physician.

At the fourth visit, Spitz again will use all these procedures to assure there is a proper fit. He also will use the keratometer to determine whether the lenses have caused any changes in the shape of the corneas. Subsequent visits ⁴⁷² are scheduled (at least four) until Spitz is satisfied with the fit. He then refers the customer back to the physician.

Because the arguments of the parties revolve around certain provisions of the Maryland Code, we set forth the relevant provisions of the Health Occupations Article (1981) as follows: Section 10-101 (f) Practice optometry.—“Practice optometry” means: (1) To use any means known in the science of optics, except drugs, medicine, or surgery: (1) To detect any optical or diseased condition in the human eye; or (ii) To prescribe eyeglasses or lenses to correct any optical condition in the human eye; (2) To give advice or direction on the fitness or adaptation of eyeglasses or lenses to any individual for the correction or relief of a condition for which eyeglasses or lenses are worn; or (3) To use or permit the use of any instrument, test card, test type, test eyeglasses, test lenses, or other device to aid in choosing eyeglasses or lenses for an individual to wear. Section 10-102. Scope of title. (a) In general.—This title does not limit the right of an individual to practice a health occupation that the individual is authorized to practice under this article.

(b) Specific additional exemptions.—This title does not affect the right of: (1) An optician to provide glasses on the prescription of a licensed optometrist or a physician who is authorized to practice medicine under Title 14 of this article; or (2) A dealer to sell eyeglasses or lenses if the dealer does not practice or claim to practice optometry. Section 10-301. License required; exception. (a) In general.—Except as otherwise provided in this title, an individual shall be licensed by the Board before the individual may practice optometry in this State. ⁴⁷³ (b) Exception.—This section does not apply to a student while participating in a residency training program under the direct supervision of a licensed optometrist.

Section 10-501. Practicing without license. Except as otherwise provided in this title, a person may not practice, attempt to practice, or offer to practice optometry in this State unless licensed by the Board. The Board argues that these provisions prohibit Spitz from fitting contact lenses.

It maintains that because Spitz is not provided with a proper contact lens prescription detailing all necessary variables, he must make his own measurements and assessments in formulating lenses and “[i]n so doing, he is both prescribing lenses to correct an optical condition and using instruments or devices to aid in the choice of lenses for an individual to wear in violation of Maryland law.” The Board insists that permitting Spitz and other opticians to do anything more than fill a prescription which defines all requisite aspects of the lenses violates the language and purpose of the Act. Spitz counters by claiming that the statute does not preclude him from performing any of the functions incident to fitting contact lenses. Furthermore, he maintains that the statute cannot be read to cover his situation. When the optometry statute was enacted contact lenses were little known and seldom used.

Since the practice of opticians fitting contact lenses has grown and developed, the legislature, though being requested on numerous occasions to place the fitting of contact lenses under the aegis of optometry, has declined to do so. In addition, Spitz says the Attorney General has indicated that the services performed by an optician are not prohibited by the optometry statute. The trial court considered both of these arguments and steered a course between them, concluding that Spitz could not engage in acts requiring the exercise of his independent judgment or discretion but that he could perform purely mechanical operations in fitting contact lenses. The court concluded that the optometry statute was ambiguous be ⁴⁷⁴ cause it did not specifically refer to contact lenses and because contact lenses were virtually unknown when the statute was enacted in 1914.

Our task is clear, we must determine if Spitz is practicing optometry. We, therefore, turn to examine the statute. In Ryder Truck Lines v. Kennedy, 296 Md. 528, 535-36 , 463 A.2d 850 (1983), we said recently: We have repeated time and again that the cardinal principle of statutory construction is to determine the legislative intent. To do this we look first to the language in the statute.

If it is clear, then we need look no further. See Utt v. State, 293 Md. 271 , 443 A.2d 582 (1982); Vallario v. State Roads Comm’n, 290 Md. 2 , 426 A.2d 1384 (1981); Briggs v. State, 289 Md. 23 , 421 A.2d 1369 (1980); Department of Public Safety v. LeVan, 288 Md. 533 , 419 A.2d 1052 (1980); Dorsey v. Beads, 288 Md. 161 , 416 A.2d 739 (1980); State v. Berry, 287 Md. 491 , 413 A.2d 557 (1980); Messitte v. Colonia Mortgage Serv., 287 Md. 289 , 411 A.2d 1051 (1980); Board v. Stephans, 286 Md. 384 , 408 A.2d 1017 (1979); Harbor Island Marina v. Calvert Co., 286 Md. 303 , 407 A.2d 738 (1979); Mauzy v. Hornbeck, 285 Md. 84 , 400 A.2d 1091 (1979); Massage Parlors, Inc. v. City of Balto., 284 Md. 490 , 398 A.2d 52 (1979); Balto. Gas & Elec. Co. v. Board, 278 Md. 26 , 358 A.2d 241 (1976); Baltimore County v. White, 235 Md. 212 , 201 A.2d 358 (1964).

If it is unclear and ambiguous, we seek other aids in uncovering the legislative intent or in recognizing the legislative purpose. See Bledsoe v. Bledsoe, 294 Md. 183 , 448 A.2d 353 (1982); Briggs v. State, supra; State v. Berry, supra; Brown v. Brown, 287 Md. 273 , 412 A.2d 396 (1980); Fairchild v. Maritime Air Serv., 274 Md. 181 , 333 A.2d 313 (1975); Gatewood v. State, 244 Md. 609 , 224 A.2d 677 (1966); Walker v. Montgomery County, 244 Md. 98 , 223 A.2d 181 (1966); Truitt v. Board of Public Works, 243 Md. 375 , 221 A.2d 370 (1966); Md. Medical Service v. Carver, 238 Md. 466 , 209 A.2d 582 (1965). ⁴⁷⁵ Our reading of § 10-101(f) is not helpful. That section refers only to eyeglasses or lenses. Section 10-102(b)(l) creates more confusion because it exempts opticians who “provide glasses on the prescription of a licensed optometrist or a physician.” Neither section specifically refers to contact lenses.

We cannot conclude, therefore, from the use in the statute of eyeglasses, lenses, or glasses that the legislature intended to include “contact lenses.” We turn then to other techniques to discover the meaning of the statute. We have said that examination of a statute’s purpose may prove a useful interpretive tool. See Ryder Truck Lines v. Kennedy, supra. We considered the purpose of the optometry statute in Dvorine v. Castelberg Corp., 170 Md. 661 , 185 A. 562 (1936).

In that case Castelberg Jewelry maintained a department for the sale of eyeglasses and employed an optometrist to provide this service. The Board of Optometrists, its individual members, and an optometric association brought suit to enjoin Castelberg from engaging in the practice of