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Smith v. Capriotti12/2/1999
We are asked to determine if appellant's, Michelle Braswell Smith, medical malpractice claim against Robert Capriotti is barred by limitations. We hold that it is so barred, and affirm the summary judgment rendered for Capriotti.
Facts
Capriotti performed breast implant surgery on Smith, who sued him for negligence in selecting and implanting breast augmentation prosthetics that had not undergone federal screening. The chronology of the interaction between the parties was as follows:
June 20, 1991 Capriotti performed breast implantation surgery
Feb. 22, 1993 Smith advised Capriotti she had obtained an attorney and asked for the name of her implants; he told her they were Unimed implants
June 24, 1994 Capriotti sent Smith's medical records to her attorneys; the implants were identified as Unimed
Sept. 1994 Smith joined class action suit against breast implant manufacturers
April 1996 Smith discovered Unimed implants not approved by FDA
Oct. 28, 1996 Smith sued Capriotti
Limitations
Medical negligence claims are governed by the Medical Liability and Insurance Improvement Act; under the Act, a plaintiff must file suit for malpractice within two years of the date the tort was committed. Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 10.01 (Vernon Supp. 1999). When a suit is based solely on negligent surgery, the date of surgery is the date the tort was committed; limitations begins to run as of that date. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995). Here, limitations began to run on the date of the implant surgery: June 21, 1991. Accordingly, limitations had run when Smith filed suit on October 28, 1996.
The Act abolished the discovery rule in suits against health care providers. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996). However, the open courts provision of the Texas Constitution requires that a plaintiff be given a reasonable opportunity to discover a wrong and bring suit. We must determine if the open courts provision overcomes limitations under these circumstances.
Smith defines her injury as the implantation of unapproved breast implants. The essence of her argument is that she did not have a malpractice cause of action until she discovered in the spring of 1996 that her Unimed implants had never been approved by the Food and Drug Administration. She argues that she could not have discovered this information any earlier than she did, and contends her suit, filed about six months later, was filed within a reasonable time.
We reject Smith's contentions based on the following evidence reflected in the record:
(1) In 1993, less than two years after the surgery, Smith was experiencing unpleasant physical symptoms, such as pain and fatigue, that she attributed to her breast implants; she had retained counsel at that time.
(2) She was informed orally in 1993 that her implants were Unimed; the written records sent by her doctor to her attorneys in 1994 also identified the implants as Unimed. Although there was some confusion during discovery about the implant manufacturer, this occurred after she had filed suit. Moreover, it was finally settled that the implants were, as originally stated, Unimed.
(3) Smith knew other women were alleging similar injuries, and she joined them in 1994 as a member of a class action suit against various implant manufacturers.
(4) Although Smith now limits the definition of her injury to the use of unapproved implants, both of her medical experts opined that Capriotti was negligent not only in his selection of unapproved implants,
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