Q. Law or Statute?
Is the Duty to Warn law a federal law, or a state law, or statute?.

A.
There is no state or federal law mandating Duty to Warn. The courts have ruled that an eyecare professional has a responsibility involving consumers' right of "informed consent." Any person ordering eyeglasses must be informed that one lens material (polycarbonate) is more impact-resistant than all others.

Q. Drop Ball Testing Plastic 
We've always understood that plastic lenses do not require drop ball testing because they have been batch tested by the manufacturers. Recently, when we order thin uncut plastic lenses, our laboratory tells us we must drop ball the lenses after edging them. Are they correct?

A.
The Duty to Warn kit published by the Optical Laboratories Association contains a special section on Factory Waivers. It states: 
"If you order lenses thinner than manufacturer recommendations, factory waivers no longer apply and you are required to drop ball test the lenses. Applying coatings or other treatments to lenses transfers the impact-testing responsibility to the subsequent processors."

Q. Patient Waivers
Is there a standard waiver for patients who have been informed that polycarbonate is the safest lens but choose to order a different material? Should we insist every patient sign a release?

A.
The waiver form is included in the OLA's Duty To Warn kit. It is a camera-ready stat called a "Patient Rejection Form" and can be reproduced by your local printer on two-part NCR paper. The form is designed to be signed by the patient (or the parent/guardian). A copy is given to the patient and the original retained in the patient's file. 
Having everyone sign Patient Release Forms, however, is inappropriate. 
First, the patient cannot consent to the practitioner's negligence. Second, it often serves as a source of friction in the doctor/dispenser relationship. Third, the patient can still claim that he/she did not understand all the alternatives and ramifications of what was signed. 
The important thing is to record what you told the patient on the patient's record.

Q. Written Material Recommendations

A.
Assuming that the facts could be proven as you have presented them, it is my opinion you would have no liability. Duty to Warn is the responsibility of the dispenser who has direct access to the patient. As a safeguard, I would preserve copies of the prescriptions on which you have written "Polycarbonate recommended."

-Joseph S. Gill, Esq., OLA Legal Counsel

The doctor has a responsibility and an obligation to make a recommendation to the patient when he or she feels that polycarbonate (or some other lens material) is the better lens for the patient. If the doctor truly feels the patient should have polycarbonate, I would not write "polycarbonate recommended." I would simply write "polycarbonate" on the Rx form. No optician has the right to change the doctor's written prescription. Opticians who choose to ignore a doctor's written instructions will have to shoulder any liability.

-Pamela Miller, O.D., F.A.A.O., J.D.EB

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