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Lawsuit against Wisconsin ODs dismissed after 2 years
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MADISON, Wis. — A circuit court judge here has dismissed a lawsuit filed in 2000 by the Wisconsin Academy of Ophthalmology against the Wisconsin Optometry Examining Board and several individual optometrists.
On Aug. 12, Dane County Circuit Court Judge David Flanagan ruled to discard the lawsuit, which for 2 years has restricted Wisconsin’s optometric scope of practice. “The judge issued his decision that the case was not ripe for judicial review,” said Charles B. Brownlow, OD, FAAO, executive vice president of the Wisconsin Optometric Association. “He ruled that the plaintiffs had no standing to even bring a suit, so the whole thing was thrown out.”
The “scope statement”
Dr. Brownlow said the lawsuit dates back to May 2000, when several optometrists began to seek photorefractive keratectomy (PRK) privileges.
“They talked to the optometric association and asked whether this procedure was in their scope of practice. The optometric association does not, of course, determine scope of practice,” Dr. Brownlow told Primary Care Optometry News. “So the association attended the May 12, 2000, meeting of the Wisconsin Optometry Examining Board (OEB), asking the board to make rules relative to this question.”
As a result of that meeting, the OEB determined that laser procedures are within optometry’s scope of practice and launched a “scope statement,” which addressed the need for rules on this subject. “Basically, the scope statement said that the OEB was going to move forward and make rules as to which optometrists were permitted to perform these procedures,” Dr. Brownlow said.
Upon hearing of the scope statement, the Wisconsin Academy of Ophthalmology, the American Academy of Ophthalmology, the Wisconsin Medical Society and the American Medical Association jointly filed the lawsuit.
“The lawsuit basically told the OEB that they couldn’t move forward with their scope statement,” Dr. Brownlow said. “Then about a month later, they added four optometrists to that suit, seeking an order to stop them from performing laser procedures.”
As a result of the suit, the OEB withdrew its scope statement, and apparently the optometrists named in the suit ceased performing laser procedures, Dr. Brownlow said. “During that next 2-year period, the plaintiffs were gathering information and filing additional briefs and requests for motions — so were the defense attorneys,” he said. “Finally, a court hearing was held in August 2002.”
Implications of the ruling
After listening to testimony from each of the three attorneys involved, Judge Flanagan issued his decision to dismiss the plaintiffs’ case, Dr. Brownlow said.
“This essentially puts everything back to May 2000, before the suit was filed,” Dr. Brownlow said. “It puts things back on the shoulders of the individual optometrist to decide what he or she is trained, licensed and experienced to do and to decide how he or she is going to move forward.”
Dr. Brownlow said Wisconsin has a very broad state law, which was modeled after the medical practice act.
“The legislature did that in 1989 so that it did not have to constantly be considering changes to the law every time something new came down the road,” he said. “We were very much in favor of that approach back in 1989, and we still are. We believe that optometrists can and do learn to do procedures that are within optometric sciences.”
Dr. Brownlow added that he found the lawsuit’s focus on laser procedures to be narrow and unnecessary. “In reality, the law doesn’t say anything positive or negative about lasers specifically. It deals with treating and managing conditions of health and disease of the human eye,” he said. “So to bring a suit specifically about laser seems much narrower than the law really is.”
Although the lawsuit did result in a 2-year cessation of laser privileges and the withdrawal of the scope statement, Dr. Brownlow said Wisconsin optometrists were very patient. “The optometrists respected the court and did not push the issue during the 2 years that the suit was pending,” he said. “That doesn’t surprise me one bit, because optometrists tend to be very respectful of authority. They have waited until the judge ruled.”
This same pragmatic approach is likely to guide optometry as it begins to forge ahead in Wisconsin, Dr. Brownlow said. “As optometrists move forward from this point, I would be pretty surprised if it is anything but very cautious, well thought out and within each optometrist’s perception of the state laws,” he said.
At this point, Wisconsin optometrists have not yet begun to perform PRK and LASEK procedures, Dr. Brownlow said.
“My personal opinion is that individual Wisconsin optometrists will take a while to decide what their next step will be,” he said. “As far as the optometric association, the Board of Directors and the Legislative Committee will probably be holding some planning sessions to determine their next course of action.”
As is the case in many states, Wisconsin optometrists generally have good working relationships with individual ophthalmologists, Dr. Brownlow said.
“So often, the issues are between the academy of ophthalmology and the optometric association,” he said. “When optometrists and ophthalmologists are working together toward treating a patient, everybody gets along fine.”
For Your Information:
- Charles B. Brownlow, OD, FAAO, is a Primary Care Optometry News columnist and the executive vice president of the Wisconsin Optometric Association. He can be reached at PO Box 10, Weyanwega, WI 54983; (608) 274-4322; fax: (608) 274-8646; e-mail: brownlowod@aol.com.