WILCOX v. LEXINGTON EYE INSTITUTE (2005)

¶ 1 Kathy Wilcox and Brodie Smith went to Canada for laser assisted in situ keratomileusis (LASIK) eye surgery.   Wilcox and Smith filed a lawsuit in King County Superior Court against the Canadian surgical facility and two Canadian ophthalmic surgeons for complications from the LASIK surgery.   In an amended complaint, Smith sued the Bellevue optometry center and the optometrist who conducted a pre-operation examination before his LASIK surgery.   The Canadian surgeons moved to dismiss for lack of jurisdiction and improper venue.   The trial court ruled Wilcox did not carry her burden to show the agreement to sue in Canada was unreasonable and dismissed her lawsuit.   On appeal, Wilcox contends she met her burden and the forum selection provision is not enforceable.   In the alternative, Wilcox argues the surgeons are collaterally estopped from asserting the forum selection clause.   On summary judgment, the trial court ruled Smith's claims against the Bellevue optometry center and the optometrist were barred by the statute of limitations.   Smith contends there are genuine issues of material fact about whether he timely filed his lawsuit within the statutory one-year discovery time period.   We affirm the trial court's decision to enforce the forum selection provision but remand to determine whether one of the surgeons is collaterally estopped from asserting improper venue.   We conclude Smith's claims against the Bellevue optometry center and the optometrist are barred by the statute of limitations.

FACTS

¶ 2 In 1999, Washington residents Kathy Wilcox and Brodie Smith went to Surrey, British Columbia for LASIK surgery at Lexington Eye Institute (Lexington).   Before the scheduled eye surgery, Lexington sent Wilcox and Smith information about LASIK surgery and surgery consent forms.   Wilcox and Smith also had pre-operation eye examinations.   The first was at Focus Eye Care, Inc. (FOCUS) in Bellevue;  the second was at Lexington prior to surgery.   On the day of the eye surgery at Lexington, Wilcox and Smith signed an eye surgery consent form.   On June 22, 1999 and September 29, 1999, Dr. Murray McFadden performed LASIK eye surgery on Smith and Wilcox.   Wilcox subsequently returned to Lexington for a second surgical procedure performed by Dr. Peter Stockdill.   Wilcox and Smith each suffered complications from LASIK eye surgery.

¶ 3 On May 31, 2002, Wilcox and Smith sued Lexington, Dr. McFadden, and Dr. Stockdill in King County Superior Court.¹  The court entered a default judgment against Lexington.²  In March 2003, Smith filed an amended complaint naming Focus and, Gretchen Ariz, O.D., the Focus optometrist who performed a pre-operation examination, as additional defendants.   Dr. McFadden filed a motion to dismiss for lack of personal jurisdiction and improper venue.   Dr. Stockdill filed a motion to dismiss for improper venue.   The trial court ruled the forum selection provision in the “Lexington Laser Vision Surgical Consent Form” ³ was enforceable and on April 11, 2003, entered an order dismissing the lawsuit filed in King County against Dr. McFadden and Dr. Stockdill.   On April 22, Wilcox filed motions for reconsideration, which the court denied.   In January, 2004, the court dismissed Smith's claims against Focus and Dr. Ariz as barred by the statute of limitations.   Wilcox appeals the trial court's decision to enforce the forum selection clause and deny her motions for reconsideration.⁴  Smith appeals the order dismissing his claims against Focus and Dr. Ariz as barred by the statute of limitations.

ANALYSIS

Forum Selection Clause

¶ 4 Wilcox claims the trial court erred in dismissing her lawsuit based on the forum selection provision in the LASIK Eye Surgery Consent Form that designates Canada as the proper forum for the suit.   Relying on our decision in Voicelink Data Services, Inc. v. Datapulse. Inc., 86 Wash.App. 613, 937 P.2d 1158 (1997), the trial court ruled that Smith “failed to produce any evidence as to why the forum selection clause should not be enforced.” ⁵

¶ 5 The parties disagree about the proper standard of review.   Wilcox argues review is de novo.   Dr. McFadden and Dr. Stockdill argue we should review the trial court's decision for abuse of discretion.   Here, as in Voicelink, the question is whether Wilcox met her burden of proving that the forum selection clause should not be enforced.   We conclude Wilcox failed to meet her burden under either a de novo or an abuse of discretion standard.

 ¶ 6 Washington courts will enforce a forum selection clause unless it is unreasonable or unjust.  Voicelink, 86 Wash.App. at 618, 937 P.2d 1158.   Because the court does not accept the pleadings as true, the party challenging a forum selection provision bears a heavy burden to show it should not be enforced.  Id. at 618, 937 P.2d 1158;  Bank of America, N.A. v. Miller, 108 Wash.App. 745, 748, 33 P.3d 91 (2001).  “[A]bsent some evidence submitted by the party opposing enforcement of the clause to establish fraud, undue influence, overweening bargaining power, or such serious inconvenience in litigating in the selected forum so as to deprive that party of a meaningful day in court, the provision should be respected as the expressed intent of the parties.” ⁶

¶ 7 Wilcox, a bank manager in Harrington, Washington, learned about Lexington from her sister who traveled to Canada to have LASIK surgery done there.   Wilcox also read about Lexington on its website.   The website described the surgery and included information about the surgeons.   Wilcox called Lexington and paid for her surgery by credit card.   She then received a “Surgical Information Guide” and a “Laser Eye Surgery Consent Form” from Lexington.⁷

¶ 8 On the last page before the signature line, the consent form contains a forum selection clause designating Canada as the sole forum for any disputes related to LASIK surgery.

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.⁸

¶ 9 On September 29, 1999, before her scheduled surgery with Dr. McFadden, Wilcox met with a Lexington representative to review and sign the “Lexington Laser Vision Surgical Consent Form.” ⁹ The surgery consent form contained a forum selection clause that was identical to the Laser Eye Surgery Consent Form Wilcox had received in the mail and previously reviewed.¹⁰  Wilcox initialed each page of the Lexington LaserVision Surgical consent form on September 29, and signed directly below the forum selection provision.   During Wilcox's LASIK surgery, Dr. McFadden incorrectly programmed the LASIK equipment for Wilcox's eye surgery.   On February 25, 2000, Wilcox returned to Lexington for another LASIK eye surgery.   She signed another surgical consent form and Dr. Peter Stockdill performed the second surgical procedure on her.

¶ 10 Below, Dr. McFadden filed a motion to dismiss for lack of personal jurisdiction and improper venue.   Dr. Stockdill filed a motion to dismiss based solely on improper venue.   In opposition to the motion to dismiss, Wilcox focused primarily on Dr. McFadden's lack of jurisdiction argument.   In response to the motions to dismiss for improper venue, Wilcox relied exclusively on the doctrine of mutual mistake to argue that the forum selection provision in the consent form was unenforceable.¹¹  The trial court ruled Wilcox failed to carry her burden of showing why the forum selection provision should not be enforced and entered the order of dismissal on April 11, 2003.   Wilcox filed a CR 59 motions for reconsideration on April 22.   In her motion for reconsideration, Wilcox argued the forum selection clause should not be enforced because of fraud, undue influence, overweening bargaining power and lack of consideration.   The trial court denied the motion to reconsider.

 ¶ 11 On appeal, Wilcox abandons her argument of mutual mistake altogether and instead relies exclusively on the new arguments she raised for the first time in her CR 59 motion for reconsideration.¹²  Motions for reconsideration are addressed to the sound discretion of the trial court and a reviewing court will not reverse a trial court's ruling absent a showing of manifest abuse of discretion.  Perry v. Hamilton, 51 Wash.App. 936, 938, 756 P.2d 150 (1988).   A trial court abuses discretion when its decision is based on untenable grounds or reasons.  Wagner Dev., Inc. v. Fidelity & Deposit Co. of Maryland, 95 Wash.App. 896, 906, 977 P.2d 639 (1999).

 ¶ 12 Relying on Reitz v. Knight, 62 Wash.App. 575, 581 n. 4, 814 P.2d 1212 (1991), Wilcox claims she can raise new theories of law for the first time in a motion for reconsideration.   Wilcox's reliance on Reitz is misplaced.   In Reitz, we held that a new theory based on the evidence presented in a nonjury bench trial could be raised for the first time in a motion for reconsideration.   But here, the motion for reconsideration arguments were based on new legal theories with new and different citations to the record.   Wilcox offers no explanation for why these arguments were not timely presented.  CR 59 does not permit a plaintiff to propose new theories of the case that could have been raised before entry of an adverse decision.  JDFJ Corp. v. Int'l Raceway, Inc., 97 Wash.App. 1, 7, 970 P.2d 343 (1999).

 ¶ 13 In any event, Wilcox's new motion for reconsideration arguments are unpersuasive.   First, unlike Gerimonte v. Case, 42 Wash.App. 611, 712 P.2d 876 (1986), Wilcox presented no evidence of unfair persuasion or misrepresentation by Dr. McFadden or Dr. Stockdill about the forum selection clause.   Wilcox had the opportunity to read the Laser Eye Surgery Consent Form and the forum selection clause well in advance of her surgery and again at Lexington on the day of her surgery.   The forum selection provision is clearly written and Wilcox's signature appears directly underneath a conspicuous “Jurisdiction” heading.¹³  Next, Wilcox argues that the forum selection provision is part of an unenforceable adhesion contract and there was no consideration.   Even if the surgery consent form is an adhesion contract, it is not necessarily unenforceable.  Zuver v. Airtouch Communications, 153 Wash.2d 293, 103 P.3d 753 (2004);  Mendez v. Palm Harbor Homes, Inc., 111 Wash.App. 446, 45 P.3d 594 (2002).   The terms were not buried in fine print and Wilcox presents no evidence of undue influence to sign the surgery consent form and agree to the forum selection clause without a reasonable opportunity to consider the terms of the agreement.   While performance of a pre-existing legal obligation does not constitute valid consideration, there is no evidence that Wilcox asked for a refund or objected to the forum selection clause before the surgery.   In addition, Wilcox presents no evidence that Dr. McFadden had a pre-existing legal obligation.   Multicare Med. Center v. State, Dep't of Soc. & Servs., 114 Wash.2d 572, 584, 790 P.2d 124 (1990).

¶ 14 We conclude Wilcox failed to carry her burden to produce evidence that the forum selection clause is unfair or unreasonable and the trial court did not abuse its discretion in denying the motion for reconsideration.

¶ 15 The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

Collateral Estoppel

¶ 16 In the alternative, Wilcox contends that if the forum selection provision in the surgery consent agreement is enforceable, Dr. McFadden and Dr. Stockdill are collaterally estopped from asserting improper venue.   Wilcox's collateral estoppel argument is based on a settlement agreement between Lexington and a class of Washington residents in Harris, et al. v. Lexington Eye Institute, Ltd., et al., King County Superior Court No. 00-2-26941-2 SEA. 14  As part of the settlement, the King County Superior Court ordered Lexington and the other defendants in that case, Focus, Dr. Robert Woods and Jeanne Hua, O.D., to “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.” 15  Wilcox is a member of the class in Harris, 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, L.P., 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. 16

¶ 17 In opposition to Dr. Stockdill's motion to dismiss, Wilcox relied on the Harris order to argue Dr. Stockdill could not assert improper venue as a defense.   In opposition to Dr. McFadden's motion to dismiss, Wilcox did not argue that Dr. McFadden could not assert improper venue based on Harris.

¶ 18 Collateral estoppel can be invoked by a nonparty against a party to the earlier action and the criteria for application of the doctrine are:  (1) that the issue decided in the prior adjudication must be identical with one presented;  (2) the prior adjudication must have ended in a final judgment on the merits;  (3) the party against whom the defense is asserted must have been a party or in privity with the party to the prior litigation;  and (4) application of the doctrine must not work an injustice.  State Farm Mut. Auto. Ins. Co. v. Amirpanahi, 50 Wash.App. 869, 871, 751 P.2d 329 (1988).   Wilcox has the burden of proving collateral estoppel.  Id.

¶ 19 Because the trial court did not address the collateral estoppel argument Wilcox raised as to Dr. Stockdill, we remand to determine whether the doctrine prevents Dr. Stockdill from asserting improper venue.   For the first time on appeal Wilcox argues Dr. McFadden is also collaterally estopped from asserting improper venue. Because Wilcox did not make a collateral estoppel argument as to Dr. McFadden at the trial level we will not consider this argument for the first time on appeal.   See Herberg v. Swartz, 89 Wash.2d 916, 925, 578 P.2d 17 (1978);  Cotton v. Kronenberg, 111 Wash.App. 258, 273, 44 P.3d 878 (2002);  RAP 2.5(a).

Statute of Limitations

¶ 20 Smith contends the trial court erred in dismissing his claims against Focus and Dr. Ariz on summary judgment as barred by the statute of limitations.17

¶ 21 We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court.  Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wash.2d 784, 790, 16 P.3d 574 (2001);  Anica v. Wal-Mart Stores, Inc., 120 Wash.App. 481, 487, 84 P.3d 1231 (2004).   Summary judgment is proper when the pleadings and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  CR 56(c).  Facts and reasonable inferences are viewed in a light most favorable to the nonmoving party.  Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794, 64 P.3d 22 (2003).   Summary judgment is appropriate if in view of all the evidence, reasonable persons could reach only one conclusion.  Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992).

¶ 22 Smith relies on his expert's opinion to argue there are material issues of fact about whether his March 23, 2003 lawsuit was timely under the one-year discovery rule of RCW 4.16.350.

¶ 23 On June 19, 1999, Brodie Smith obtained a pre-operative examination for LASIK surgery at Focus.   Gretchen Ariz, O.D. worked at Focus and performed the examination to determine if Smith was a candidate for LASIK surgery.   Although Smith had keratoconus,18 a contraindication for the LASIK surgery, he was told he was a candidate for the surgery.   On June 22, 1999, after a second pre-operative examination, Smith had LASIK eye surgery done at Lexington.

¶ 24 Smith's lawsuit against Lexington, Dr. McFadden and Dr. Stockdill was filed on May 31, 2002.   The complaint alleged Smith was not an appropriate candidate for LASIK surgery because he had kerataconus.   On March 23, 2003, Smith filed an amended complaint naming Focus and Dr. Ariz as additional defendants.   The amended complaint alleges the pre-operative examination at Focus and at Lexington showed Smith had kerataconus.

¶ 25 RCW 4.16.350 provides two alternative limitations periods to bring a negligence claim against a health care provider:  (1) within three years of the alleged injury-causing act or omission, or (2) within one year from the time the plaintiff discovers or reasonably should have discovered that the injury was caused by the alleged wrongful act or omission, whichever is later. 19

¶ 26 Smith does not dispute that his claims against Focus and Dr. Ariz were not filed within the three-year statute of limitations in RCW 4.16.350.   He contends there is a genuine issue of material fact as to whether his lawsuit was timely under the one-year discovery rule in RCW 4.16.350.   Under RCW 4.16.350, the one-year discovery period commences when the plaintiff discovered or reasonably should have discovered all the essential elements of his cause of action.  Zaleck v. Everett Clinic, 60 Wash.App. 107, 110-11, 802 P.2d 826 (1991).

¶ 27 The question of when a patient, through the exercise of due diligence, reasonably should have discovered his injury was caused by medical negligence is typically a question of fact for the jury.  Winbun v. Moore, 143 Wash.2d 206, 18 P.3d 576, (2001).   But a question of fact can be determined on summary judgment when reasonable minds can reach only one conclusion from the admissible evidence.  Smith v. Safeco Ins. Co., 150 Wash.2d 478, 485, 78 P.3d 1274 (2003).

¶ 28 The one-year period begins to run even if the plaintiff is not certain that all of the elements of the cause of action can be established.   The plaintiff need only discover some information about each of the four elements of a possible cause of action.  Olson v. Siverling, 52 Wash.App. 221, 228, 758 P.2d 991 (1988).   If the plaintiff has some information about the elements of a possible cause of action, the statute will begin to run even if the plaintiff is advised by a physician or an attorney that there is no cause of action.  Id. In other words, the discovery rule does not require knowledge of the existence of a legal cause of action.  Caughell v. Group Health Cooperative of Puget Sound, 124 Wash.2d 217, 237, 876 P.2d 898 (1994).

¶ 29 Smith's June 19, 1999 pre-operative examination at Focus included an examination and a topography of his eyes.   The record establishes Smith knew that his appointment with Dr. Ariz. O.D. at Focus was to determine whether he was a candidate for LASIK surgery:

I remember specifically being told that I was a candidate and everything was-that I was a candidate for the surgery and that I'd be having my surgery․ I remember going [to Focus] with the assumption of finding out if I was actually a candidate for the surgery.

․

To me, I just assumed that it was just part of the procedure.   It was someplace that you went prior to having your surgery done.   So, I mean, to me it was kind of the same group, so it was more-I assumed it was kind of a convenience for people in Washington state that it was there, so I'd go there, have the measurements or whatever, taking of my eyes and pictures taken so that you go up there and have the surgery done.20

¶ 30 Smith had another pre-operative examination at the Lexington before his scheduled surgery on June 22, 1999.   According to the Surgical Information Guide that Smith received ahead of time, “a thorough examination is performed to verify your eye measurements and your eye condition” prior to the eye surgery.21  The examination at Lexington included a color topography with specialized Lexington equipment (the Orbscan).   After surgery, Smith testified that his vision was worse but he waited to see if his vision would improve.   On January 11, 2000, Lexington gave Smith a prescription for contact lenses.   The prescription also states Smith has keratoconus.   On February 1, 2000, Smith went to see his longtime eye doctor, Dr. Tosland.   According to Dr. Tosland's notes, Smith “was told by Focus Eye Care to have fitting for RGP CTL's for keratonconus, see enclosed topography.” 22

¶ 31 Smith admits that on February 1, 2000, Dr. Tosland told him that he had keratonconus, a contraindication for LASIK surgery, that in Dr. Tosland's opinion, LASIK surgery should not have been done, and the surgery made his vision worse.23  The next day, Smith filled out an authorization asking Lexington and Focus to provide complete copies of his medical records to Dr. Tosland.   Smith also handwrote in the authorization, “[p]lease fax and send a copy of topography pictures taken prior to my last surgery․” 24

¶ 32 After Dr. McFadden's deposition in January 2003, Smith's expert witness, Dr. Harry Geggle, changed his opinion that the surgeon alone was negligent in performing LASIK eye surgery on Smith.   Based on Dr. McFadden's testimony that he did not receive the Focus color topography showing keratonconus, Dr. Geggle concluded Focus and the optometrist, Dr. Ariz, violated the standard of care.

¶ 33 Smith contends his case is like Winbun because he did not know Focus and Dr. Ariz owed him a duty until his expert reviewed Dr. McFadden's January 2003 deposition testimony and he learned the Focus color topography was not provided to Dr. McFadden.25  The key consideration in Winbun and in applying the discovery rule is the factual basis not the legal basis for a cause of action.  Adcox v. Children's Orthopedic Hosp., 123 Wash.2d at 15, 35, 864 P.2d 921 (1993).

¶ 34 Smith's claims against Focus and Dr. Ariz accrued when he knew or should have known the relevant facts, despite whether he knew that these facts are “enough to establish a legal cause of action.”  Allen v. State, 118 Wash.2d 753, 758, 826 P.2d 200 (1992).   The discovery rule does not require knowledge of the existence of a legal cause of action.26  The one-year statute of limitations is not tolled until a plaintiff's expert witness advises the plaintiff that he has a cause of action.   If a plaintiff knows or has reason to know of the underlying factual elements of his claim, his ignorance of the proper legal theory will not be a defense to the running of the statute of limitations.  Zaleck, 60 Wash.App. at 107, 113-114, 802 P.2d 826.   The one year discovery period will not be invoked where the plaintiff has access to information that a wrong has occurred but fails to exercise due diligence in pursing a legal claim.  Id. at 113, 802 P.2d 826.

¶ 35 Unlike Winbun, Smith knew the health care providers who performed his pre-operative eye examinations.27  Smith knew the purpose of the pre-operative examinations at Focus and at Lexington was to determine if he was an appropriate candidate for LASIK surgery.   He was told he was a candidate for surgery and the surgery was performed after the two pre-operative examinations. 28  Dr. Tosland told Smith on February 1, 2002, that he had keratonconus, he should not have had the surgery, and the surgery made his vision worse.   The next day Smith authorized the release of records from Lexington and Focus and asked for the topographies.

¶ 36 This is also not like Lo v. Honda Motor Company, Ltd., 73 Wash.App. 448, 869 P.2d 1114 (1994).   In Lo, there were two logical explanations for injury and the plaintiff repeatedly and unsuccessfully asked her son's physicians how he came to be so severely afflicted.  Id. By contrast Smith knew or should have known the cause of his harm and had ready access to information but failed to exercise due diligence.  Zaleck, 60 Wash.App. at 113, 802 P.2d 826.

¶ 37 We conclude that by February 2000, Smith reasonably knew or should have known he was damaged by the failure of Focus and Dr. Ariz to diagnose keratocunus and exclude him as a candidate for LASIK surgery.   Smith's untimely claims against Focus and Dr. Ariz were barred by the statute of limitations.

CONCLUSION

¶ 38 Wilcox did not carry her burden to show the forum selection clause designating Canada as the exclusive forum for suit was unenforceable.   We affirm the decision to enforce the forum selection clause and dismiss the lawsuit against Dr. McFadden.29  But we remand to determine whether Dr. Stockdill is collaterally estopped from asserting improper venue.30  We conclude Smith knew or should have known the factual elements of his cause of action against Focus and Dr. Ariz by February, 2000 and affirm the decision to dismiss Smith's claims against Focus and Dr. Ariz as untimely.

FOOTNOTES

1.   Wilcox and Smith sued as individuals and on behalf of their marital communities.

2.   Lexington is no longer in business.

3.   CP at 304-310.

4.   The April 11, 2003 order also dismissed Smith's claims against Dr. McFadden and Dr. Stockdill based on the forum selection clause in the surgery consent form.   Smith does not challenge this order on appeal.

5.   Clerk's Papers (CP) at 2133.

6.   Voicelink, 86 Wash.App. at 618, 937 P.2d 1158 (quoting, Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 (9th Cir.1984)).

7.   CP at 283-302.

8.   CP at 301.

9.   CP at 304-310.

10.   CP at 283-302.

11.   Wilcox claimed Dr. McFadden misrepresented his qualifications on the website and in the Lexington surgical information guide.

12.   Because Wilcox does not argue mutual mistake on appeal.   Therefore, we conclude the issue has been abandoned.  State v. Williams, 96 Wash.2d 215, 226, 634 P.2d 868 (1991);  Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 28-29, 593 P.2d 156 (1979).

13.   CP at 301, 310, 320.

14.   CP at 864.

15.   CP at 865.

16.   CP at 864-65.

FN17.  The trial court ruled that “[t]here is no genuine issue of material fact that precludes the [court] from granting summary judgment on this basis.   Mr. Smith was advised in Feb. of 2000 that he should not have had Lasik surgery due to his keratoconus condition.   It is undisputed that Mr. Smith knew that his visit to Focus was part of the arrangement for surgery and its purpose was to pre-screen.   This knowledge is evidenced by his [r]ecords [r]equest to Lexington and Focus in February of 2000 upon learning of his condition.   It is [r]easonable to conclude that Mr. Smith had enough knowledge that he knew or [r]easonably should have known of his claims in 2000.”   CP at 2159..  FN17.  The trial court ruled that “[t]here is no genuine issue of material fact that precludes the [court] from granting summary judgment on this basis.   Mr. Smith was advised in Feb. of 2000 that he should not have had Lasik surgery due to his keratoconus condition.   It is undisputed that Mr. Smith knew that his visit to Focus was part of the arrangement for surgery and its purpose was to pre-screen.   This knowledge is evidenced by his [r]ecords [r]equest to Lexington and Focus in February of 2000 upon learning of his condition.   It is [r]easonable to conclude that Mr. Smith had enough knowledge that he knew or [r]easonably should have known of his claims in 2000.”   CP at 2159.

FN18.  Keratoconus is a non-inflammatory eye condition in which the cornea, which is normally round, progressively thins.   LASIK surgery can worsen the keratoconus condition.   Consequently, patients with keratoconus are not proper candidates for LASIK eye surgery..  FN18.  Keratoconus is a non-inflammatory eye condition in which the cornea, which is normally round, progressively thins.   LASIK surgery can worsen the keratoconus condition.   Consequently, patients with keratoconus are not proper candidates for LASIK eye surgery.

FN19. RCW 4.16.350 provides in relevant part:Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:(1) A person licensed by this state to provide health care or related services, including, but not limited to ․ optometrist․․(3)(1) ․ based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission․.  FN19. RCW 4.16.350 provides in relevant part:Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:(1) A person licensed by this state to provide health care or related services, including, but not limited to ․ optometrist․․(3)(1) ․ based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission․

FN20.  CP at 1949-50 (emphasis added)..  FN20.  CP at 1949-50 (emphasis added).

FN21.  CP at 284..  FN21.  CP at 284.

FN22.  CP at 1374..  FN22.  CP at 1374.

FN23. “I remember him-or what I recall best of my recollection in that in discussing with him is that, you know, after he went back and kind of looked at the records and what had happened, it was-I just remember him saying surgery shouldn't have been performed.   I'm trying to remember more specifics, but the general tone was just that the surgery should not have been performed.”   CP at 1378..  FN23. “I remember him-or what I recall best of my recollection in that in discussing with him is that, you know, after he went back and kind of looked at the records and what had happened, it was-I just remember him saying surgery shouldn't have been performed.   I'm trying to remember more specifics, but the general tone was just that the surgery should not have been performed.”   CP at 1378.

FN24.  CP at 1380..  FN24.  CP at 1380.

FN25.  Smith also relies on Webb v. Neuroeducation, P.C., Inc., 121 Wash.App. 336, 88 P.3d 417 (2004) rev. denied, 153 Wash.2d 1004, 103 P.3d 1247 (2005).   But unlike Webb, Smith knew the factual basis for his cause of action well before he received his expert's opinion..  FN25.  Smith also relies on Webb v. Neuroeducation, P.C., Inc., 121 Wash.App. 336, 88 P.3d 417 (2004) rev. denied, 153 Wash.2d 1004, 103 P.3d 1247 (2005).   But unlike Webb, Smith knew the factual basis for his cause of action well before he received his expert's opinion.

FN26. “To so require would effectively do away with the limitation of actions until an injured person saw his/her attorney.   This is not the law.”  Gevaart v. Metco Construction, Inc., 111 Wash.2d 499, 502, 760 P.2d 348 (1988)..  FN26. “To so require would effectively do away with the limitation of actions until an injured person saw his/her attorney.   This is not the law.”  Gevaart v. Metco Construction, Inc., 111 Wash.2d 499, 502, 760 P.2d 348 (1988).

FN27.  Smith knew he saw a woman optometrist at Focus.   Whether he knew her name is irrelevant because he admits he knew her role..  FN27.  Smith knew he saw a woman optometrist at Focus.   Whether he knew her name is irrelevant because he admits he knew her role.

FN28.  It is also undisputed that Lexington's protocols did not require Focus to send the color topography to the Canadian surgeon and Lexington uses its own machine to do a color topography, an examination before proceeding with surgery..  FN28.  It is also undisputed that Lexington's protocols did not require Focus to send the color topography to the Canadian surgeon and Lexington uses its own machine to do a color topography, an examination before proceeding with surgery.

FN29.  In Shaffer v. McFadden, 125 Wash.App. 364, 104 P.3d 742 (2005), we reached a different result on the same forum selection clause provision based on an argument that is not advanced here..  FN29.  In Shaffer v. McFadden, 125 Wash.App. 364, 104 P.3d 742 (2005), we reached a different result on the same forum selection clause provision based on an argument that is not advanced here.

FN30.  As a prevailing party, Dr. McFadden is entitled to attorneys' fees on appeal under RCW 4.28.185(5) and RAP 18.1.   In Voicelink, this court granted attorneys' fees under RCW 4.28.185(5) to a non-resident defendant who successfully obtained a CR 12(b)(3) dismissal based on a forum selection clause.  Voicelink, 86 Wash.App. at 627, 937 P.2d 1158..  FN30.  As a prevailing party, Dr. McFadden is entitled to attorneys' fees on appeal under RCW 4.28.185(5) and RAP 18.1.   In Voicelink, this court granted attorneys' fees under RCW 4.28.185(5) to a non-resident defendant who successfully obtained a CR 12(b)(3) dismissal based on a forum selection clause.  Voicelink, 86 Wash.App. at 627, 937 P.2d 1158.

SCHINDLER, J.