Judge rules Idaho optometric board cannot authorize ODs to perform laser surgery

Issue: November 1996

BOISE, Idaho — A judge here has ruled that the Idaho Board of Optometry (IBO) is not authorized to allow optometrists to perform photorefractive keratectomy (PRK).

The case stemmed from a complaint filed this spring by the Idaho Medical Association, the Idaho Society of Ophthalmology and the American Academy of Ophthalmology after Idaho optometrists began performing PRK procedures in February.

The defendant in the case was the IBO, which issued a "Written Interpretation of Law" on Oct. 6, 1995, stating that it was "within the scope of practice of an optometrist with therapeutic credentials to perform refractive and therapeutic laser procedures." Optometrists began performing PRK in late February this year.

Idaho had no specific laws prohibiting optometrists from performing laser surgery. Larry Benton, executive director of the Idaho Optometric Association (IOA), said optometrists there have performed between 50 and 60 PRK procedures.

The decision by Judge D. Duff McKee, is a memorandum opinion, Benton said. Optometrists in the state are not legally barred from performing PRK, he said, until the plaintiffs file for a summary judgment. "What [McKee] said was the Board doesn't have the authority to issue a directive on this," Benton said. "That's what the lawsuit was about."

PRK uses a "light knife"

McKee's ruling, issued in State District Court in Ada County, focused on three areas: PRK is "'surgery' as that word is commonly defined," optometry's scope of practice does not include surgery and the IBO cannot enlarge that scope to include surgery.

McKee said PRK "is an invasive procedure . . . the use of a 'light knife' instead of a steel surgical knife . . . does not alter the analysis." He added, "The definition of 'optometry' . . . [does not] encompass the performance of surgery by optometrists in the state of Idaho."

McKee also ruled that the "Written Interpretation" should be put aside, "as the Board does not have the authority as a self-governing entity to define for itself the parameters of the practice of optometry."

The ruling came down despite recent information indicating favorable patient outcomes for the first 10 patients on which the ODs performed PRK.

Benton pointed out that McKee addressed the Board and did not "address the subject of whether or not ODs are qualified." Benton feels MDs are "overqualified" to perform PRK and "their contention that ODs are underqualified is pure fabrication" and economically driven.

mugshot --- Thomas E. Eichhorst

Thomas E. Eichhorst, director of the State Government Relations Center of the American Optometric Association, said, "There are no complaints about the optometrists' performance. The judge only ruled, in effect, that the mere absence of a prohibition didn't give them the authority in this particular situation."

Benton said the IBO has already filed an appeal. "There were some conflicts of fact in the case that are very appealable from the [State] Supreme Court's eyes," he said. "This is not the end of this issue."

Effect on other states?

The decision raises the question of how or if it will impact similar legislation in other states. Oklahoma, in particular, is in the midst of a lawsuit between the state's Board of Medical Licensure and the Board of Examiners in Optometry that will determine whether optometrists can use lasers.

David Eldridge, OD, past president of the Oklahoma Optometric Association, offered the following statement, prepared by the association in reaction to the lawsuit: "The optometry definition in each state is different, and each case is different, and Idaho does not affect Oklahoma law."

Eichhorst said the decision will probably not have much effect on future state legislative battles over laser privileges: "There's no reason for the decision in one state to have any impact in another state unless the law and circumstances are exactly the same. Each state determines for it self the manner in which it seeks to advance the scope of practice for the practitioners."

However, Steve Carter, director of State Affairs at the American Academy of Ophthalmology, believes the case will affect rulings in other states. "The facts in the case are very clear," he said. "It will set a precedent around the country. Any place this same issue is addressed in the future, obviously, this case would be a part of that litigation."

mugshot --- Jeffrey M. Augustine, OD

Jeffrey M. Augustine, OD, president of the Optometric Refractive Surgery Society, said it is too early to expect organized optometric associations to give support to the excimer laser licenser issue, but, "It took pioneers to get our TPA status, and we need to have pioneers like the Idaho optometrists to move optometry into the 21st century. Also, it is important as to whether we want to make PRK a battleground since LASIK may be the refractive surgery procedure of choice."

Benton said this is really the first round in a battle that will soon end up in front of the legislature, and the suit was a way "to set up a public clamor" for ophthalmology lobbying efforts.

As for optometrists in Idaho who still want to perform PRK, Benton said, they should check with "their personal legal counsel. I don't see us as being cowboys here," he said. "We'll do what is appropriate and what is legal."

Because the decision issued was a memorandum opinion, there will be no punishments or fines to either the IBO or any individual optometrists.

For Your Information:

Thomas Eichhorst can be contacted at the American Optometric Association, 243 North Lindbergh Blvd., St. Louis, MO 63141; (800) 365-2219, Ext. 234; fax: (314) 991-4101.

The Idaho Optometric Association can be reached at 9077 Maple Hill Dr., Boise, ID 83709; (208) 378-7700.

The Optometric Refractive Surgery Society can be contacted at 2740 Carnegie Ave., Cleveland, OH 44115; (216) 621-6132.