A patient who sued her plastic surgeon for failing to disclose his eye injury does not have a valid case under consumer protection laws, a Washington state appeals court has ruled.
Stanley Jackson, MD, of Puyallup, Wash., suffered an injury to his left eye in 1999 when it was struck by a bungee cord. He underwent surgery and other ophthalmic treatment.
In 2000, he performed breast augmentation surgery with saline-filled implants on Denise Dalien of Tacoma. Five years later, Ms. Dalien sought surgery to replace the saline implants with gel-filled ones, but was unhappy with the results. She underwent a series of revision surgeries with Dr. Jackson in 2005 and 2006.
Also in 2006, Dr. Jackson, having noticed a decline in his vision, underwent eye surgery. The surgery was not successful, and he retired from his practice later that year.
Ms. Dalien filed 2 lawsuits citing the potentially negative effects of Dr. Jackson's eye injuries on his surgical outcomes. In 2008, she sued him for negligence. In 2009, she filed a class action lawsuit against him and his practice partner, Philip C. Kierney, MD, arguing that their failure to inform prospective patients of Dr. Jackson's impaired eye violated the federal Consumer Protection Act.
A trial court dismissed the class action suit on grounds that it wasn't legally actionable. Ms. Dalien appealed that ruling to the state's appeals court, which upheld the trial court's dismissal on April 19.
The appeals court notes in its ruling that Dr. Jackson's undisclosed eye injury did not occur in "trade or commerce" — that is, in the areas of obtaining, retaining and billing patients — which must be proven to establish a consumer protection violation. Complaints involving a physician's diagnosis, treatment or patient care cannot be prosecuted under consumer law, says the court, despite Ms. Dalien's arguments that they may have a negative impact on the physician's business.
"[Ms.] Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," writes the court. "To the extent that Dr. Jackson's eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit."
According to attorney Steven Fitzer of Tacoma, who represented Dr. Jackson, the negligence lawsuit was confidentially settled following the appeals court's decision, resolving the litigation.
Ms. Dalien's attorney did not immediately respond to a request for comment.
David Bernard
