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When The Patient Suffered Complications From The Procedure, He Sued The Canadian Surgeon In King County Superior Court

When the patient suffered complications from the procedure, he sued the Canadian surgeon in King County Superior Court.  The surgeon moved for summary judgment for lack of personal jurisdiction and improper venue based on a forum selection clause.  The trial court granted the surgeon's motion.  We reverse and remand for further proceedings because there are issues of material fact as to whether the forum selection clause is enforceable and whether the surgeon is subject to personal jurisdiction in Washington.

Robert Shaffer, a Washington resident, traveled to Canada to have LASIK eye surgery performed at Lexington Eye Institute.  Shaffer received a pre-operative evaluation at Focus Eye Care, Inc. in Bellevue, Washington by Dr. Alan Israel.  Shaffer then scheduled his LASIK procedure and traveled to Canada for the procedure.  When Shaffer arrived at Lexington, Dr. Murray McFadden, a Canadian resident, reviewed Shaffer's medical charts and spoke with Shaffer about the condition of his eyes.  Before the procedure, Shaffer signed an informed consent booklet, which included a forum selection clause.  McFadden performed the procedure, and Shaffer returned to his home in Washington. Shaffer suffered adverse consequences from the procedure and sued Lexington and McFadden in King County Superior Court.  The court entered
default judgment against Lexington.  McFadden moved for summary judgment for lack of personal jurisdiction and improper venue based on the forum selection clause.  The trial court granted McFadden's motion, and Shaffer moved for reconsideration.  The trial court denied Shaffer's motion for reconsideration, and Shaffer filed a timely notice of appeal.

We review a trial court's order granting summary judgment de novo.
Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wn.2d 784, 790, 16 P.3d 574

(2001).ANALYSIS

We first address whether McFadden can enforce the forum selection clause. Forum selection clauses are enforceable unless they are unreasonable and unjust.  Voicelink Data Services, Inc. v. Datapulse, Inc., 86 Wn. App. 612,
617, 937 P.2d 1158 (1997).  If a plaintiff signed a valid forum selection
clause choosing a forum other than Washington, dismissal under CR 12(b)(3)
is proper.  Voicelink, 86 Wn. App. at 617.  Here, Shaffer signed the following forum selection clause:

Governing Law:

I hereby agree that the relationship and the resolution of any and all disputes arising from the treatment or from this Surgical Consent Form between myself and Murray McFadden, M.D., Lexington Laser Vision, L.P. and Lexington Management, L.P. shall be governed by and construed in accordance with the laws of the Province of British Columbia.

Jurisdiction:

I hereby acknowledge that the treatment will be performed in the Province of British Columbia and the Courts of the Province of British Columbia shall have sole jurisdiction to entertain any complaint, demand, claim or cause of action, whether based on alleged breach of contract or alleged negligence arising out of the treatment.  I hereby agree that if I
commence any such legal proceedings they will be only in the Courts of the Province of British Columbia, and I hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of British Columbia.

Shaffer argues that McFadden cannot enforce the forum selection clause because he was only a third-party beneficiary to the contract between Shaffer and Lexington.  'A third-party beneficiary contract exists when the contracting parties intend to create one.  The test of intent is an objective one: whether performance under the contract would necessarily and
directly benefit the third party.'  Donald B. Murphy Contractors, Inc. v. King County, 112 Wn. App. 192, 196, 49 P.3d 912 (2002) (citation omitted).

Shaffer argues that the forum selection portion of the contract was between him and Lexington and McFadden was not a party to the contract.  The forum selection clause was part of a multi-page booklet entitled 'Consent Form. Shaffer signed on the bottom of the page containing the forum selection clause.  McFadden did not sign on the forum selection clause page.  But both Shaffer and McFadden signed on what appears to be the last page of the booklet, under the section entitled 'Patient's Statement of Acceptance and Understanding.'  This could be read as an acceptance of the entire booklet,
including the forum selection clause, which created a contract between McFadden and Shaffer.  On the other hand, this section explicitly gives McFadden permission to perform the surgery and can be read as only including McFadden in the specific consent to perform surgery and not in the remainder of the contract with Lexington.  Thus, under this reading,
McFadden would not be a party to the forum selection clause.  Moreover, McFadden stated in his declaration that he discussed the informed consent booklet with Shaffer and confirmed that Shaffer understood it.  Shaffer, on
the other hand, stated that McFadden did not discuss the consent booklet with him.  Under these circumstances, there is an issue of material fact as to whether McFadden was a direct party to the contract or if he was only a third party beneficiary.  The distinction between a direct party to the contract and a third party beneficiary is important because it bears on
whether McFadden can enforce the forum selection clause.

Shaffer argues that McFadden cannot enforce the forum selection clause as a third party beneficiary because Lexington cannot enforce the clause. This argument is based on a settlement agreement between Lexington and a
class of Washington residents in Harris, et. al. v. Lexington Eye Institute, et. al., King County Superior Court No. 00-2-26941-2 SEA.  Under that settlement, the King County Superior Court ordered that Lexington and
other defendants 'waive or otherwise not assert as defenses the 'governing law' and 'jurisdiction' clauses contained in the Lexington Eye Institute Consent Form  in any personal injury lawsuits brought by these and all class members{.}'  Shaffer appears to be a member of the class, which includes:

All Washington consumers who have purchased laser eye surgery services from some or all of Lexington Eye Institute Ltd., a Canadian corporation, Lexington Eye Institute, LP, a Canadian limited partnership; Focus Eye Care, Inc.; Dr. Robert Woods, or Jeanne Hua, O.D., a/k/a Trinh Hua, O.D. (collectively 'Defendants'), since October 9, 1996, or who will purchase laser eye surgery services from some or all of the Defendants

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