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Smith v. Capriotti12/2/1999
but also in his selection of surgical technique and in his use of anesthesia without engaging the services of an anesthetist.
Any action brought under article 4590i sounds in negligence. Smith was having negative symptoms she attributed to her implants and had retained an attorney in early 1993. She could have sought expert opinions at that time, before limitations had expired, sued Capriotti for negligence, and amended her pleadings when she discovered the implants were not approved.
Assuming, without deciding, that Smith was entitled to the open courts exception, we hold she had discovered her injury by the time she applied to be a member of the class action suit in 1994. That this suit was for products liability, not medical negligence, does not matter. Smith had a reasonable opportunity to discover Capriotti's negligence and sue him in 1994. Yet, she did not sue him for over two years after discovering the wrong, over five years after the occurrence of the allegedly negligent act. Even under the open courts exception, a time lapse of over two years-a span longer than the applicable limitations period-is not reasonable.
We affirm the summary judgment.
Eric Andell Justice
Do not publish. Tex. R. App. P. 47.
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