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Perform Pre And Post Operative Care For The Patients On Which He Performed The LASIK Procedure

Shaffer argues that McFadden is subject to specific personal jurisdiction because he purposefully availed himself of the privileges of Washington law and that, but for his actions, the injuries to Shaffer, a Washington resident, would not have occurred.  Central to Shaffer's argument is the contention that Lexington's contacts with Washington and McFadden's relationship with Lexington and Focus constitute purposeful contacts with the state of Washington.3  Here, it is clear that Lexington made purposeful contact with the state of Washington and would be subject to jurisdiction here.  Lexington extensively advertised in the state, specifically targeting Washington residents.  The advertisements emphasized that only one trip to Canada was necessary and provided information about shuttles and hotel discounts for Lexington patients.  Lexington also conducted seminars in Washington to convince Washington residents to travel to Canada to receive LASIK procedures at a discounted price. 

These contacts are clearly sufficient to establish personal jurisdiction over Lexington.  This, however, does not resolve the issue of whether McFadden is subject to jurisdiction in Washington. McFadden argues that under the holding in Lewis, he cannot be subject to the jurisdiction of the Washington courts.  In Lewis, Jeanne Lewis, a Washington resident, went to Oregon to receive prenatal care at Dr. Peter Bours' clinic.  Lewis gave birth to Tazzalyn at the clinic in Oregon, and Bours released them with instructions to see a doctor upon returning to Washington.  The baby suffered severe complications.  Lewis sued Bours, alleging that he committed a tort in Washington under the long-arm statute because the injury manifested itself in Washington.  The court held that, 'In the event that a nonresident professional commits malpractice in another state against a Washington State resident, that, standing alone, does not constitute a tortious act committed in this state regardless of whether the Washington State resident suffered injury upon his or her return to Washington.'  Lewis, 119 Wn.2d at 673.  This case is distinguishable because Shaffer is alleging an agency relationship between McFadden and Israel, not just that his injury manifested itself in Washington.  Additionally, Shaffer is alleging that McFadden had a duty to provide the care that he delegated to Israel.  In Lewis, there was no
evidence that Bours had a co-management relationship with Washington doctors or that he delegated a duty owed to his patient to another doctor. Thus, Lewis is not applicable in this case.

Shaffer argues that McFadden is subject to personal jurisdiction in Washington based on the acts of Israel in performing the pre and post operative care of McFadden's patients in Washington.  An agent performs services for the principal and is subject to the principal's right to control.  Chapman v. Black, 49 Wn. App. 94, 99, 741 P.2d 998 (1987).  An agency relationship exists, even absent a showing of control, when a person performs an act that another has a duty to perform.  Abel v. Firs Bible & Missionary Conference, 57 Wn.2d 853, 855, 360 P.2d 356 (1961).  Shaffer argues that Israel was an agent of McFadden's and that because Israel treated the patients in Washington, McFadden is subject to personal jurisdiction here.  In support of this argument, Shaffer presented a declaration by Dr. Harry Geggel, a Washington refractive surgeon, who concluded that McFadden practiced medicine in Washington because of the delegation of his duties to perform pre- and post-operative care to Israel.

McFadden argues that Geggel's declaration is improper because there is no evidence that Geggel is qualified to opine on the standard of care for Canadian surgeons.  Geggel's declaration, however, does raise issues of material fact regarding whether Israel's actions confer jurisdiction over McFadden.  McFadden himself admits that a surgeon has some responsibility
for pre- and post-operative care:  '{O}phthalmic surgeons have the primary responsibility for the pre-operative assessment and post-operative care of his or her patients.'  McFadden also admits that under the co-management relationship with Focus, Focus would perform the pre- and post-operative care of his patients.  Additionally, McFadden recognized that he was in a co-management relationship with Israel and Focus:  'The fact that {Israel} sent {the preoperative form} suggests to me that he agreed. It suggests to me that he agreed to co-manage the patient, should I agree to proceed with surgery.'  Thus, McFadden admits that there was some sort of agreement with Focus and Israel to perform pre- and post-operative care for the patients on which he performed the LASIK procedure. 

If there was an agency relationship between McFadden and Israel, Israel's performance of McFadden's duties constitute actions of McFadden in Washington and therefore McFadden may be subject to personal jurisdiction here.  Thus, at a minimum, Shaffer raises an issue of material fact as to whether McFadden had a duty to perform the pre- and post-operative care and whether Israel's performance of that care made him an agent of McFadden's.  The trial court, therefore, erred in granting summary judgment in favor of McFadden on the issue of personal jurisdiction.4 Because there are issues of material fact, we reverse and remand for further proceedings.  This decision does not preclude the trial court from limiting the triable issues.

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