ASSOCIATION FOR RETARDED v. Fletcher

• Decision Date: 18 June 1999
• Docket Number: No. 98-879.,98-879.
• Citation: ASSOCIATION FOR RETARDED v. Fletcher, 741 So.2d 520 (Fla. App. 1999)
• Parties: ASSOCIATION FOR RETARDED CITIZENS-VOLUSIA, INC., etc., Appellant, v. Sandra FLETCHER, etc., Appellee.
• Court: Florida District Court of Appeals

741 So.2d 520

ASSOCIATION FOR RETARDED CITIZENS-VOLUSIA, INC., etc., Appellant, v. Sandra FLETCHER, etc., Appellee.

No. 98-879.

District Court of Appeal of Florida, Fifth District.

June 18, 1999.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando, for Appellant.

Kimberly Sands of Sands, White & Sands, P.A., Daytona Beach, for Appellee.

ANTOON, J.

The Association for Retarded Citizens-Volusia, Inc. (ARC), is a nonprofit organization that has provided services and programs to persons with developmental disabilities in Volusia County since 1962. ARC sponsors numerous programs and provides services ranging from developmental training, employment assistance, residential care, and social services. One of the programs sponsored by ARC is a summer camp.

Nathan Wiley suffered a seizure and aspirated water while swimming in a pool at a summer camp operated by ARC. He later died as a result of respiratory complications. Nathan's mother Sandra Fletcher, as personal representative of Nathan's estate and individually, sued ARC alleging negligence and was awarded damages for Nathan's wrongful death. ARC appeals the final judgment contending that the trial court erred by 1) entering partial summary judgment prohibiting ARC from pleading and arguing to the jury that the alleged negligence of medical providers who treated Nathan following the swimming accident resulted in his wrongful death, and 2) denying its motion for judgment notwithstanding the verdict on grounds that Ms. Fletcher failed to establish that ARC had breached any duty of care. We affirm.

In 1992, Ms. Fletcher arranged for Nathan to attend the ARC summer camp as a day camper. The camp was located at the Central Baptist Youth Camp near the Ocala National Forest and was operational from July 27 until August 1. Nathan was seventeen years old at the time. He had a severe developmental disability and suffered grand mal seizures. In completing the camp application, Ms. Fletcher indicated that Nathan suffered from grand mal seizures and was taking prescription medication for this condition. Although this information was included in the application, it was not shared with Nathan's camp counselor or the pool lifeguards. The application did not question, nor did any camp employee ask, Ms. Fletcher when Nathan's last seizure had occurred or to what extent the seizures were controlled by the medication. Nonetheless, ARC's camp employees were aware that it is not unusual for persons with developmental disabilities to experience seizures and that even those persons whose disorders are "controlled" are likely to experience "breakthrough" seizures.

Upon arrival the campers were divided into various groups. Nathan was one of fourteen boys and thirteen girls who comprised the "blue group." The blue group was further divided for supervision purposes; the boys were divided into two groups of seven, and the girls into one group of seven and one group of six. Each of these smaller groups was supervised by a counselor. The groups rotated through the various camp activities including use of the swimming pool.

During pool activities, the counselors were in the pool with the campers and were required to "watch them, stay with them, and realize that they're in the water." A lifeguard was also on duty and had the responsibility of watching the campers while they were in the pool in addition to placing drops in their ears as they exited the pool. Only two members of the blue group (Dara and Dexter) were permitted to swim in the deep end of the pool. The others, including Nathan, were required to remain in the shallow end of the pool. Such precautions were necessary because swimming can be a hazardous activity for persons with developmental disabilities. During a seizure, a person could lose voluntary muscle control including control over the ability to keep his head above water or to hold his breath. Such loss of control could also result in the inhalation of amounts of water sufficient to cause drowning or near drowning. Those who survive inhalation of significant amounts of water are also at risk of developing Adult Respiratory Distress Syndrome ("ARDS"), a condition which often results in death. On July 28, 1992, the blue group was completing its forty-five-minute pool period and a group of girls had already exited the pool. The lifeguard was on the deck at the shallow end administering ear drops, and two counselors, including the one supervising Nathan, were at the rope between the shallow and the deep ends of the pool. At this point, the counselor who was assigned to supervise Nathan decided to "stretch out" and swim to the deep end of the pool to speak to Dara. The other counselor then began to move from one side of the pool to the other watching his campers, all of whom remained in the shallow water. No one saw Nathan as he crossed under the rope to a point in the deep end of the pool.

While speaking to Dara, Nathan's counselor noticed that Nathan was face down in the deep end of the pool approximately thirty feet from where he had last seen him. According to the counselor, Nathan appeared to be in trouble because he was "jerking around." The counselor shouted to the other counselors, then dove in and pulled Nathan to the surface. When he was removed from the water Nathan did not appear to be breathing, but the lifeguard was able to resuscitate him. After Nathan regained consciousness, he was transported by ambulance to the Halifax Medical Center in Daytona Beach.

When he arrived at the medical center's emergency room Nathan was confused and aggressive. Examination revealed that he had aspirated a significant amount of water which had severely damaged his lungs. Nine days after he was admitted to the hospital, Nathan died. The cause of his death was ARDS.

Ms. Fletcher filed this lawsuit alleging that ARC's negligence was the proximate cause of Nathan's death. ARC answered the complaint denying liability and asserted the affirmative defense that Nathan's wrongful death was caused by the negligent medical care provided to him after the swimming accident. Approximately six months before trial, Ms. Fletcher moved for summary judgment on ARC's affirmative defense contending that, as a matter of law, the defense was inapplicable because the allegedly negligent care providers "are not joint tortfeasors with the Defendants." Ms. Fletcher argued that the Florida Legislature's 1991 statutory abrogation of the common law theory of joint and several liability in favor of the allocation of fault among tortfeasors was not intended to apply to medical professionals who subsequently provided negligent treatment aggravating a plaintiffs initial injury.¹ In response, ARC filed a memorandum in support of their affirmative defense and a motion to add third parties to the verdict form. This motion listed EMS, Halifax Hospital, and four physicians who allegedly treated Nathan after the swimming accident. After conducting a hearing on the matter, the trial court entered summary judgment in favor of Ms. Fletcher thereby prohibiting ARC from pleading, proving, or arguing that the medical providers who treated Nathan after the accident negligently aggravated his injuries.

At trial, ARC urged the trial court to reconsider its summary judgment ruling. The trial court agreed and allowed ARC to proffer testimony in support of its affirmative defense. The proffer consisted of the testimony of ARC's two expert witnesses regarding the allegedly negligent act of transporting Nathan to Halifax Medical Center instead of a medical facility which was located closer to the day camp. However, neither expert testified that it was more likely that Nathan would have survived the swimming accident had he been transported to a closer hospital.

In that regard, ARC proffered the testimony of Dr. Greenspan in support of its affirmative defense. With regard to whether Nathan's death was caused by the swimming accident or subsequent medical negligence, Dr. Greenspan testified:

A. The die is cast in some sense, he aspirated. Whatever damage was going to be done to some extent was going to be done. Yet medically you want to try to intervene and support that as soon as possible.

If they had gotten him to a facility an hour earlier, half hour earlier, diagnosis would have been quicker, treatment would have been quicker.

Would that have affected how ill he was? Would that have affected his hospital course? I don't know the answer to that. The probability, and I don't think anybody knows, but the probability, in my view, is if he had gotten to that same hospital a little earlier, his outcome may not have been any different. But could it have possibly been different? Yes, it could possibly have been different. I don't know that.

Q. What I need to know, more likely than not that it would have been different, would it probably have been?

A. I would say it probably would not have been.

Q. Okay, and that is because of the seriousness of the injury he suffered in the pool?

A. Correct.

This testimony does not establish that negligent medical care contributed to Nathan's death. This was not the only evidence the trial court considered in making its ultimate ruling. ARC also proffered the deposition testimony of Drs. Purandare, Wahba, and Reeves regarding the effect of the initial injury.

Dr. Purandare testified that it was not a surprise that Nathan died because his level of lung injury was quite severe, and that there is nothing that you can do to prevent adult respiratory distress syndrome after someone has inhaled water. Similarly, Dr. Wahba testified that there is no specific treatment for respiratory distress syndrome stating that "[t]he only thing you can do for ARDS is support, meaning give him oxygen, put them on a ventilator, watch them on a daily basis and support them. There's no specific treatment. It carries an extremely high mortality." (Emphasis added). Finally, Dr. Reeves stated that a near drowning...