In May 2000, the Wisconsin Optometry Examining Board, a state agency, made a series of decisions that would reverberate through the state’s healthcare system right up to today.
At the request of the Wisconsin Optometric Association, the board unilaterally adopted a motion declaring its interpretation and policy position that laser-based surgeries fell within the scope of optometric practice under Wisconsin law. The unelected board’s edict was handed down without any public or legislative process, and, soon after, Wisconsin optometrists began performing laser surgical procedures on live patients and holding themselves out to patients and the public as qualified to perform them.
Within a few weeks, the American Academy of Ophthalmology, the Wisconsin Academy of Ophthalmology and the Wisconsin Medical Society—then named the State Medical Society of Wisconsin—filed suit seeking several declaratory judgments. Among them was that the scope of optometric practice established under Wisconsin statute prohibited laser eye surgeries by optometrists.
As a result, just days later, the Wisconsin Optometry Examining Board called a special meeting, the majority of which was closed to the public. Upon returning to open session, it voted unanimously to rescind its edict declaring laser surgical procedures as within the scope of optometric practice.
The board thereafter abandoned the rulemaking process and never again put forth any rules authorizing or regulating surgery by optometrists. For the next 26 years, the board’s claim to have taken no position regarding surgery by nonphysician optometrists, together with its nonenforcement of the state’s prohibition of the practice of medicine by nonphyicians, has permitted Wisconsin optometrists to continue attempting laser and other surgeries on patients, without any published educational, clinical, experiential, or disciplinary guardrails.
Because of this, the AMA and several other professional societies are suing the Wisconsin Optometry Examining Board and the Wisconsin Department of Safety and Professional Services in Wisconsin court challenging the defendants’ interpretation, application and nonenforcement of Wisconsin law prohibiting Wisconsin optometrists from performing eye surgeries.
The complaint—American Medical Association, American Academy of Ophthalmology, Wisconsin Academy of Ophthalmology and Wisconsin Medical Society v. Wisconsin Optometry Examining Board and Wisconsin Department of Safety and Professional Services, which was filed in the Dane County Circuit Court, in Wisconsin—also seeks declaratory and injunctive relief from the defendants’ aggrandizement of lawmaking authority.
“Notwithstanding the lack of legal authorization, Wisconsin optometrists have attempted, and continue to attempt, laser and other surgeries on patients with impunity, causing adverse outcomes for patients,” the complaint says.
The AMA is fighting scope creep, defending the practice of medicine against scope of practice expansions that threaten patient safety and undermine physician-led, team-based care.
Yawning differences in training
Among the factual allegations are that optometrists are not licensed physicians—they are neither doctors of medicine nor doctors of osteopathic medicine—and that their training falls well short of that of physicians.
For example, optometrists typically receive four years of training at a school of optometry, which generally does not include any hands-on surgical training on live patients. The vast majority of their surgical education is observation only and utilization of non-live equipment. Optometrists may also, but are not necessarily required to, complete an undergraduate education before entering a school of optometry.
Ophthalmologists, by contrast, must complete at least eight years of medical training, including four years of medical school following completion of college, as well as four or more years of clinical and surgical residency training in ophthalmology under the supervision of ophthalmologists. In addition, many ophthalmologists complete a one- or two-year fellowship in a subspecialty of ophthalmology.
An ophthalmologist’s training spans many types of surgery, including performing cataract surgery, laser surgery, and other forms of surgery on live human patients, under the direct supervision of a teaching ophthalmologist but with responsibility for intraoperative decision-making and, critically, management of surgical complications. And their surgical experience begins all the way back in medical school, during surgical rotations and in the emergency room.
Learn more about the differences between ophthalmologists and optometrists.
Patient safety is paramount
The upshot of this disparity in training is significant risk to patients who are subjected to laser-based surgery by optometrists. Even the most common laser-based surgeries carry risk of substantial harms when performed properly—some of them permanent.
For example, in the case of photorefractive keratectomy (PRK), which is performed to correct refractive error in patients’ eyes, a surgeon uses an excimer laser to remove corneal tissue from the eye to reshape the cornea.
“If PRK (or another laser procedure to correct myopia, hyperopia, or other vision deficits in otherwise healthy eyes) is not performed properly, serious harm can be caused to the patient, including impairment or complete loss of vision and/or the discomfort, inconvenience, and costs of further corrective procedures,” the complaint notes.
“Ophthalmologists’ broader training as physicians provides them with greater competency to prevent, recognize, and address the full range of potential complications of a PRK than optometrists,” it adds.
Other common laser eye surgeries include:
- Laser in-situ keratomileusis (LASIK), to correct myopia.
- Peripheral iridotomy (PI), for narrow-angle and angle-closure glaucoma.
- Selective laser trabeculoplasty (SLT) and direct selective laser trabeculoplasty (DSLT), to treat open-angle glaucoma.
- Retinal laser photocoagulation, for treatment of blood vessel disorders and structural abnormalities of the retina.
“These laser surgeries require comprehensive medical evaluation of ocular and systemic disease, informed consent addressing surgical risks and alternatives, appropriate laser settings and technique, intraoperative complication recognition and management, and physician-level postoperative management, including prescription of systemic medications, coordination with other medical specialists and emergency surgical intervention,” the complaint says.
In sum, “failure at any stage can result in irreversible harm to the patient.”
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
