Tempchin v. Sampson

Hammond, C. J., delivered the opinion of the Court. This is a sad case. The appellant, an experienced optometrist, characterized by a leading ophthalmologist as “the most competent optometrist I have ever dealt with,” was found by the jury, permissibly and justifiably in our view, to have been guilty of professional negligence that was a proximate cause of damage to the eyes of the appellee, a young woman, that may well end in blindness in one eye and possibly in the other. The sole contention of the appellant is that Judge Moorman erred in ruling that there was sufficient evidence of negligence to go to the jury.

We are not persuaded, finding that there was ample evidence. The appellant Stanley Tempchin is a practicing optometrist,. licensed by the Board of Examiners of Optometry for the State of Maryland, and so held himself out. Code (1971 Repl. Vol.), Art. 43, § 372, defines the permitted practice of optometry as: “the employment of any means, except the use of drugs, medicine or isurgery, known to the science of optics for the purpose of determining, correcting and prescribing by means of lenses for any optical condition existing in the human eye, and also the employment of any means, except the use of drugs, medicine or surgery, for the purpose of detecting diseased conditions.” Section 381 of Art. 43 makes it “unlawful for any per ¹⁵⁸ son to knowingly sell to or prescribe glasses for persons with diseased eyes except it be with their knowledge and consent or on an order of or advice from a registered physician.” Enid Deborah Cook (Mrs. Sampson at the time of trial) was troubled because her eyes tired when she read for a time and because an examiner of the Department of Motor Vehicles advised her to have her eyes examined before she sought a renewal of her driver’s license.

Her aunt took her to Dr. Tempchin to obtain glasses. Both were aware that he was an optometrist and was not an ophthalmologist. As part of the examination, Dr. Temp-chin looked at the internal structures of the eyes with an ophthalmoscope and detected on the lens of each eye what he described as spots or opacities, the abnormality being greater in the right eye. Enid and her aunt both say he told them the spots were evidences of incipient cataracts.

Both testified that they inquired as to the need or desirability of consulting a doctor and that they were told that they need not do so as he would check the patient’s eyes each year for', two or three years and would recommend medical advice when it was needed. Dr. Tempchin prescribed glasses which the patient bought and attempted to use without relief. Enid’s eyes deteriorated very rapidly and painfully and some eleven days after her examination and four days after she picked up her glasses, her mother on her own initiative took Enid to an ophthalmologist who immediately diagnosed her condition .as a form of uveitis. His diagnosis was confirmed that day by a sub-specialist in the medical specialty of ophthalmology, and that night Enid was taken to the hospital for intense and massive treatments with cortisone and other drugs.

After an extended period of treatment, including a stay at the National Institute of Health, her condition improved but the long range prognosis is probable eventual blindness in the right eye and possible blindness in the left. The ophthalmologist to whom Enid went eleven ¹⁵⁹ days after Dr. Tempchin discovered the abnormal or pathological condition of her eyes, testified that he could say with reasonable medical certainty that if he had seen her on September 23, the day Dr. Tempchin saw her, or soon thereafter,