Article Date: 10/1/2010

Practice Pulse TIPS, TRENDS & NEWS YOU CAN USE

Wal-Mart Found in Violation of Texas Optometry Act

RETAILER ORDERED TO PAY ROUGHLY $4M

■ Whoever said, "everything is big in Texas," can add civil penalties to that list. In late August, a federal court jury found Wal-Mart stores, Inc. guilty of violating the Texas Optometry Act, and as a result, ordered the super retailer to pay four O.D.s a total of $3.9 million in civil penalties.

Illegal lease

The four Texas O.D.s (Doris Forte, John Boldan, David Wiggins and Bridget LeeSang) filed the complaint against Wal-Mart because they alleged the company tried to control their work hours and business practices via its lease agreement.

"The lease that they [Wal-Mart] have optometrists sign includes a section of required days and hours of operation, and it includes another section that if the doctor doesn't work those specific days and hours of operation, they can terminate your lease," explains Dr. Boldan.

Under the Texas Optometry Act, it's illegal for manufacturers, wholesalers and retailers of ophthalmic goods to control, or attempt to control, the professional judgment, manner of practice or practice of an O.D. or therapeutic O.D. who leases space from these entities and practices optometry or therapeutic optometry on their premises. (For a full list of violations, see Section 351.408 of the Texas Optometry Act at www.tob.state.tx.us/TOBCode.htm.) For each day of violation, the Act provides for a civil penalty of up to $1,000 in addition to court costs and attorney's fees.

Incidentally, in the winter of 2006, Wal-Mart settled for undisclosed terms with optometrist Brad Aaron, of Texarkana, Texas, who filed a civil suit alleging the super retailer violated the Texas Optometry Act through its lease. (See "Wal-Mart Reaches Settlement With Texas O.D.," OM April 2007.)

Dr. Aaron's lawyer, Mark Burgess, of Boyd, Poff and Burgess, in Texarkana, Texas, was one of the lawyers who represented these four plaintiffs. Hector Canales, of Canales and Simonson, P.C., of Corpus Christi, Texas, also represented these plaintiffs. They say these four O.D.s, as well as eight others they're currently preparing cases for, found them through prior media coverage, the Texas Optometric Association, and through word-of-mouth from other optometrists.

Evidence beyond leases

In addition to presenting the leases themselves as evidence, the plaintiff's lawyers also presented Wal-Mart memos, e-mails, letters, training manuals and witnesses to prove the super retailer used its lease terms to control the professional judgment of these doctors as well as threaten them.

"Through a Freedom of Information Act request, we were able to get the Texas Board of Optometry to send us any complaints they received regarding Wal-Mart's violation of the law, and one of these complaints was an e-mail from a whistle blower," explains Mr. Burgess. "She was a former Wal-Mart employee who explained to the Board, in detail, how Wal-Mart was breaking the law, and how she quit because she knew it was wrong. We got her to testify through a video deposition, and I think her testimony was one of the things that made a big impact on the jury."

Another example of evidence: Mr. Burgess and Mr. Canales obtained an internal Wal-Mart memo titled "Doctor Project," which sought to "determine what correlations exist between store sales volume and doctor coverage." The memo's conclusions revealed that an optometrist with "contract hours" of greater than 40 hours nearly doubled Wal-Mart's average weekly sales revenue compared with a doctor "without contracted hours."

Not yet a done deal

As we go to press, the court has yet to enter a judgment, which is the official record of the verdict, normally issued by the court clerk once the trial judge has approved and signed the judgment's exact wording. Once the judgment has been entered, Wal-Mart has a certain amount of time to file a post-verdict motion to appeal. (At press time, Wal-Mart had not responded to Optometric Management's request for comment.)

While the four O.D.s wait for the verdict to be a done deal, all are in private practice. Dr. Forte practices in Houston, Dr. Bolden in Sulfur Springs and Drs. Wiggins and Lee Sang in San Antonio.

Meanwhile, Mr. Burgess and Mr. Canales are preparing cases for their eight remaining O.D. plaintiffs.

"If I had one message I could get to Texas O.D.s, it would be that they have a very powerful and legitimate statute of protection of their optometric practice and their independence, and they should not be afraid to stand up for that right for their own benefit and for the public welfare," says Mr. Canales. OM

Polaroid Eyewear Goes 3D

EYEWEAR COMPANY SIGNS GLOBAL LICENSING DEAL WITH TECHNOLOGY PROVIDER

■ Polaroid Eyewear and RealD Inc. (3D technology provider for movies, consumer electronics and professional applications) have signed a global license agreement, in which Polaroid Eyewear will use the RealD brand in its launch of Polaroid Premium 3D Eyewear — a new generation of curved 3D glasses.

Under the agreement's terms, Polaroid Eyewear will disseminate its RealD-certified Polaroid Premium 3D Eyewear line to eyecare professionals, movie theaters and other retail channels, such as electronic stores and mass retail optical chains, through its global network of subsidiaries and distributors this November. In addition, Polaroid Premium 3D Eyewear will be compatible with all RealD 3D-enabled movie theatres throughout the world.

"RealD is excited to partner with a brand like Polaroid that has a heritage in polarizing lens technology," says RealD president of worldwide cinema Joseph Peixoto.

The eyewear is available in various styles, which can be found at www.polaroideyewear.com/en/collection/Premium3DGlasses.aspx. In addition, Polaroid says all styles fit comfortably over any optical frame, should the consumer wear prescription eyewear. Also, all styles provide UV protection, enabling outdoor wear. Finally, a junior style will be available.

FDA News

■ The once-daily prescription eye drop travoprost ophthalmic solution (Travatan Z, Alcon) has received FDA approval as a first-line therapy for elevated intraocular pressure (IOP) associated with open-angle glaucoma or ocular hypertension. The drug was formulated without benzalkonium chloride (BAK). Rather, it uses sofZia, an ionic-buffered preservative system. For more information, visit www.travatanz.com.

■ Bimatoprost ophthalmic solution 0.01% (Lumigan, Allergan, Inc.) has received FDA approval as a first-line therapy for elevated IOP in open-angle glaucoma or ocular hypertension patients. The drug is a reformulation of bimatoprost ophthalmic solution 0.03% with a recommended dosing of once daily in the evening. See "Therapeutic Focus" (below) for more information on the new prostaglandin analog.

WCO Awards Humanitarian Effort

The World Council of Optometry posthumously awarded the International Optometrist of the Year Award to Dr. Tom Little (left), who was killed while leading a humanitarian health mission in Afghanistan. The award recognizes "outstanding commitment and contribution to both the profession of optometry and the community at large."

More details on Dr. Little's work can be found in the news section of www.worldoptometry.org and in the September issue of Optometric Management above.

Green Your Contact Lens Practice

HOW TO MARKET A BLISTER PACK RECYCLING PROGRAM

Justin Bazan, O.D., Park Slope, N.Y.

■ My patient demographic is comprised of two primary characteristics: They're ocular health conscious and environmental consciousness. As a result, while many of my contact lens wearers have expressed an interest in daily disposable lenses, they've also expressed concern that wearing these lenses will contribute to the size of existing landfills, due to the blister packs associated with a year supply of this modality. Their concerns are well founded.

Most blister packs are made of polypropylene, as indicated by their #5 recycling symbol. This is problematic because a vast number of municipalities don't pick up #5s. Further, of the recycling centers that do collect #5 plastic, some have been known to mix them with other "low value" plastics and ship them to Asia to be burned as energy — something I knew my super green-minded patients wouldn't like. So, to successfully dispense these lenses, I knew I'd need to find a way to recycle these blister packs into reusable material.

Through research on the Internet, I discovered a company called Preserve (www.preserveproducts.com). This company recycles plastic to make its own eco-friendly every-day products. These products include the Preserve toothbrush, razors, tableware, colanders and cutting boards, among other items.

Further, the company offers a program called "Gimme 5," in which you can either mail your #5 plastics (e.g. blister packs), or deposit them in retail locations, such as Whole Foods Market (www.preserveproducts.com/recycling/gimme5.html). Because this company upholds the principles of "Reduce. Reuse. Recycle," I knew my patients would be pleased if I set up a "Gimme 5" program in my practice. In addition, the idea of helping the planet made me feel good.

The results from our in-office collection program have been astonishing. From contact lens trials alone, we've been able to collect tons of blister packs. Also, word about our program has spread quickly, and we now have both patients and nonpatients bringing "donations" on a regular basis. In fact, the program has enabled me to dispense more daily disposable lenses than before, and it has helped with word-ofmouth marketing. In other words, I've become the optometrist of choice for the green-minded. (Incidentally, we do pay for the shipping to preserveproducts.com, though the cost is pretty minimal compared with the buzz and good will this program has and continues to generate for the practice.) OM

Research Notes

● The development of glaucomatous visual field loss appears to be associated with a high intraocular pressure (IOP) measurement, old age, high myopia, male gender, a positive family history of glaucoma and a large baseline vertical cup-to-disc ratio, says a 10-year follow up of the Rotterdam study, which appears in September's Ophthalmology.
Optical coherence tomography and scanning laser polarimetry can be helpful in detecting retinal nerve fiber layer loss in patients who have multiple sclerosis with optic neuritis, says August's Optometry and Vision Science.
The age-related macular degeneration (AMD) form of complement factor H (CFH) doesn't appear to localize properly to the Bruch's membrane. This may explain the cause or worsening of local inflammation that would damage retinal cells and eventually cause AMD, says September's Journal of Biological Chemistry.
Baseline glaucoma probability score, Moorfields regression analysis and stereoparameters used alone or combined with baseline clinical and demographic factors appear to predict the development of primary open-angle glaucoma (POAG) end points in Ocular Hypertension Treatment Study subjects, says September's Ophthalmology. Further, they appear to be as effective as stereographs for estimating POAG risk in ocular hypertensive patients.
● The POAG risk variant 7q31 resides near canine adenovirus type 1 (CAV1) and CAV2, both of which are expressed in the trabecular meshwork and retinal ganglion cells involved in the pathogenesis of POAG, says September's Nature Genetics.
● Silicone hydrogel (SiHy) lenses treated with the lens care solution EOBO, from Alcon, significantly improved lens wettability using the captive bubble and sessile drop methods, reveals an ARVO poster. The solution contains a block copolymer that can reduce the surface and bulk hydrophobicity of SiHy lenses and improve the hydrophilic surface properties.

O.D. NOTEBOOK

CIBA VISION is encouraging people worldwide to have their eyes examined during the month of October, in celebration of World Sight Day on October 14. The campaign includes a series of photographic images of famous landmarks, such as the Statue of Liberty, as they may be seen by a person who has an uncorrected refractive error. For more information, visit www.cibavision.com. In somewhat related news, CIBA Vision's Academy for Eyecare Excellence will expand its online learning modules to include corneal staining, contact lens-induced dry eye and lens care, patient communication strategies, business simulation exercises and guidance on how to maintain patient loyalty. Visit www.cibavisionacademy.com/us.
Alcon announced the launch of its new combination anti-inflammatory/anti-infective product, tobramycin/dexamethasone suspension (TobraDex ST) in the United States. TobraDex ST is indicated for inflammatory ocular conditions for which a corticosteroid is indicated and where bacterial infection or risk for infection exists.
Inspire Pharmaceuticals is continuing its plans to pursue azythromycin 1% (AzaSite) as a treatment for blepharitis. The company anticipates that further Phase 2 work on the drug for this indication will begin late this year with a Phase 3 trial to begin in 2011. The FDA approved AzaSite for the treatment of bacterial conjunctivitis in 2007.
ISTA Pharmaceuticals has initiated a Phase 3 clinical program of its proprietary formulation of bromfenac ophthalmic solution (Remura) for alleviating the signs and symptoms of dry eye disease. The Phase 3 studies are being conducted under a Special Protocol Assessment (SPA) agreed upon with the FDA. The multi-center trials will be conducted at more than 30 sites across the country.
◻ A new ZeaVision, LLC website, www.amdchallenge.com, allows visitors to play an educational game about age-related macular degeneration and offers the chance to win a free bottle of the company's EyePromise vitamin supplements, which contain lutein and zeaxanthin.
Bausch + Lomb has acquired acetylcholine chloride intraocular solution (Miochol-E) from Novartis AG. The drug is an injectable miotic used to constrict the pupil during procedures, such as cataract surgery. In somewhat related news, Bausch + Lomb has named Daniel M. Wechsler as corporate vice president and global president of its pharmaceuticals business. Mr. Wechsler assumes pharmaceuticals responsibility from Brent Saunders, CEO, who has acted as interim global president of the business unit.
Vistakon named Giovanna E. Olivares, O.D., director, professional education, responsible for developing strategies for the implementation of the company's professional educational programs across a broad spectrum of groups, including students, practitioners, professional affairs consultants and Vistakon sales and marketing organizations. The company also named Carol Lakkis, BScOptom., Ph.D., clinical research fellow, contact lens products, responsible for research and development of innovative new products.
◻ The Optical Laboratories Association selelected L. Peter Frieder, president of GENTEX Corporation, as the recipient of the 2010 OLA Directors' Choice Award, which recognizes outstanding contribution to the optical laboratory and ophthalmic industry.
SARcode Corporation, a privately-held biotechnology company focused on developing a novel class of lymphocyte function-associated antigen-1 (LFA-1) antagonists, announced that Quinton Oswald has joined the company as chief executive officer.
VSP Optics Group, as part of VSP GlobalSM, announced the acquisition of Capitol Optical, a full-service optical laboratory located in Olympia, Wash.
The Vision Council is currently reviewing a revised Q&A document from the FDA regarding impact resistance guidelines for spectacle lenses. The organization expects to meet to build its response prior to Vision Expo West, which is held this month in Las Vegas.
◻ The company Optometry Board Certified has scheduled a Pre-Academy Conference November 14 through 16, 2010 at the Grand Hyatt San Francisco. The conference, "Essentials in Eye Care," will offer 20 Council on Optometric Practitioner Examination (COPE)-approved hours that address all aspects of ocular disease as well as primary care optometry. According to the company, the CE hours can be used for state licensure renewal and toward the 150-point eligibility requirement for the board certification exam. For more information, visit http://optometryboardcertified.com.
◻ The Ocular Nutrition Society will hold its fall education symposium On Nov. 16, prior to the American Academy of Optometry meeting in San Francisco. The registration deadline is Nov. 8. For more information, visit www.ocularnutritionsociety.com.
As we go to press, Abbott Medical Optics announced it had received FDA market clearance for RevitaLens Ocutec, its next generation contact lens disinfecting solution for silicone hydrogel and conventional soft contact lenses. The multipurpose solution was developed with input from world-class experts, including more than 600 eyecare professionals. It will ship to U.S. retailers this month, said the company.



Optometric Management, Issue: October 2010