APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 4, 1974.
This is an appeal from a judgment in favor of defendant at the close of the plaintiff's case. The action was brought on the relation of the Director of the Department of Registration and Education pursuant to section 24 of the Illinois Optometric Practice Act (hereinafter Act) (Ill. Rev. Stat. 1966, ch. 91, par. 105.24), alleging in substance, that defendant was violating the strictures of the Act by the unlawful practice of optometry, insofar as it engaged in the practice of contact lens fitting. To that end, plaintiff sought "to enjoin any such person, firm or corporation from practicing optometry or from such act or acts in violation of the provisions of this act." *fn1
Plaintiff, in its complaint, asserted that defendant's conduct, in the fitting of contact lenses, was within the purview of the Act *fn2. Specifically, it was charged that defendant, by its unlicensed employees, fitted contact lenses to, among others, an investigator of the Department of Registration and Education who gave to defendant a prescription for lenses from an optometrist, and that such fitting involved the exercise of professional skill and judgment as contemplated by the Act. An amended complaint alleged the same basis for injunctive relief and, further asserted that the acts of defendant were encompassed by the wording of the Act: viz; it engaged in the measuring of the powers of vision; it fitted contact lenses for the purpose of adapting contact lenses for the eye; and did the above without the direct supervision of a licensed optometrist. Moreover, the amended complaint also alleged defendant exercised professional judgment, both subjective and objective, in making a number of physical determinations in regard to the contact lenses.*fn3 Defendant admitted fitting the contact lenses but denied that its conduct in this regard was within the contemplation of the Act or in contravention thereof. Rather, defendant answered, it performed the mechanical function of fitting contact lenses by trained personnel consistent with and only after a prescription of an optometrist or ophthalmologist for lenses is given to defendant by the customer.
Plaintiff, in its case in chief, called three witnesses: John Webster and Joseph Gulino, employees of defendant, who testified to the procedures undertaken by defendant in the fitting process, and Dr. Kenneth Polse, an Alabama optometrist, testified, as an expert witness for the State, to the optometric implications of the contact lens fitting process. From their testimony, plaintiff argues that defendant's conduct fell within the ambit of the Act and, therefore, constituted the practice of optometry without a certificate of registration (Ill. Rev. Stat. 1966, ch. 91, par. 105.1).
On appeal plaintiff contends that the testimony was sufficient to establish a prima facie case of statutory violation, and that the motion for judgment at the end of its case should have been denied. Defendant, conversely, seeks an affirmance of the trial court's ruling, which found:
"That the acts and things done by defendant in the fitting of contact lenses does not constitute the practice of optometry as defined in Section 3 of the Illinois Optometric Practice Act * * *."
Without engaging in a lengthy recital of defendant's procedures, we note from the testimony that the following transactional setting occurs in the fitting process. Initially, a keratometer *fn4 reading is taken of the customer's eye and trial lenses are inserted in accordance with fitting charts utilized by defendant. After insertion of the lenses, the fitter uses fluorescein *fn5 and a Burton Lamp *fn6 to evaluate tear circulation behind the lens. After this procedure, the fitter writes an order necessary for fabrication of the lenses. In regard to initial visitations (not defendant's specifically), plaintiff's expert testified that a keratometer reading was incapable of measuring an irregular cornea *fn7 and that the optician decides whether the signs he views are regular or irregular. Moreover, the expert also testified that fluorescein patterns are subject to misinterpretation and, although charts are available, the various lens curves determined by the fitter's judgment may not be accurate.
Secondly, upon delivery of the finished lenses, the customer is instructed on how to insert them, and is once again viewed with fluorescein and the Burton Lamp to determine fit. Based on this, necessary adjustments of the lenses are made and the customer is then given a wearing schedule. Polse testified that the power of the finished lens may not be accurate and in order to obtain the proper ultimate power, a refraction through a trial lens should be performed. There is no testimony that any refraction is done by defendant.
Thirdly, successive check-up visits are followed, whereby the fitter may determine lens fit, as well as elicit customer complaints, in order to compensate for improper lens design or shape. In addition, the fitter checks for staining *fn8 or other corneal changes *fn9 and takes additional keratometer readings. Based upon the above, the fitter determines whether any adjustments are necessary. Succeeding visits engender the same purpose. Polse testified that the purpose of the follow-up visits during the "adaptive period" are to evaluate the effect the lens has on the cornea. In addition, he testified that through customer response, the fitter can make judgments as to possible causes of the responsive symptoms.
Inasmuch as plaintiff has attempted to categorize defendant's acts as those expressly delineated by the Act, it is necessary to set out the relevant arguments and the purportedly controlling statutory language.
Plaintiff initially contends that defendant "adapts" lenses within the meaning of the Act. *fn10 It asserts:
"[A]s a result of his examination and observation, the technician in the exercise of his judgment determines whether to modify the lenses and the extent to which modifications and adjustments should be made. In other words, the technician adapts the lenses better to conform to the customer's eye and to preserve normal metabolic process." (Emphasis added.)
In support of this proposition, the State relies heavily on State ex inf. Danforth v. Dale Curteman, Inc. (Mo. 1972), 480 S.W.2d 848, wherein the court found defendant's admission of "fitting" lenses to be synonymous with "adaption", within the meaning of the Missouri Act. *fn11 In Curteman, the court stated at page 856:
"It is equally plain that Curteman engaged and engages in `[t]he * * * adaptation * * * of lenses * * * to correct defects or abnormal conditions of the human eye.' To `adapt' means `to make suitable or fit (as for a particular use, purpose, or situation) * * * to make suitable (for a new or different use or situation) by means of changes or modifications.' Webster's New International Dictionary, Third Edition. `Adaptation' is `the act or process of adapting, fitting or modifying' or `adjustment to environmental conditions.' Idem. Adaptation is synonymous with fitting. The adaptation of contact lenses by one prescribing such lenses is the activity or process by which such lenses are fitted to the eyes of the individual. It includes all of the actions taken by Curteman in measuring and examining the eye of the patient, the insertion of the fluorescein dye, the placing of the lenses on the cornea, the giving of a wearing schedule, the examination of the patient and the eye after trial use of the lenses, and the making of any necessary modifications in the lenses to insure a proper fit. Curteman makes contact lenses suitable to patients; fits and adjust them to the human eye; alters, changes the form and structure and modifies contact lenses to fit the needs of the patient. Dale Curteman conceded that his corporation is engaged in adapting contact lenses, in the following exchange: `Q And would you state what business Dale Curteman, Inc. is engaged in? A The fitting, upon medical referral from medical doctors, of contact lens, artificial eyes and prosthetic appliances.' Under Dale Curteman's own admission and under the plain and unambiguous language of the subsection Curteman is engaged in the adaptation of contact lenses to correct defects or abnormal conditions of the human eye.
As we construe Chapter 336 and its several provisions the circuit court erred in concluding as a matter of law that the activities and practices of Curteman do not constitute the practice of optometry in violation of Chapter 336."
Defendant, conversely, argues that the proper interpretation of the word "adapt" is to be found in State ex rel. Londerholm v. Doolin, ...