Roberts v. CHILDREN'S MEDICAL SERVICES
| Decision Date | 12 January 2000 |
| Docket Number | No. 98-04382, No. 98-04444. |
| Citation | 751 So.2d 672 |
| Parties | Celina ROBERTS, as Personal Representative of the Estate of Nick Roberts, on behalf of the Estate of Nick Roberts, and on Behalf of Celina Roberts, individually, surviving parent, and on Behalf of Martin Roberts, individually, surviving parent, Appellant, v. CHILDREN'S MEDICAL SERVICES, a former division of the Florida Department of Health and Rehabilitative Services, now known as the Department of Children and Families, and, the Agency for Health Care Administration; Interim Healthcare, Inc.; Susan Personette; Judith Winans; and Lyn Jones, Appellees. Children's Medical Services, a former division of the Florida Department of Health and Rehabilitative Services, now known as the Department of Children and Families, Appellant, v. Interim Healthcare, Inc., appellee. |
| Court | Florida District Court of Appeals |
Lorain J. O'Neil, Winter Haven, and W. Clinton Wallace, Lakeland, for Appellant Celina Roberts.
Charles W. Hall, St. Petersburg, and Charles Tyler Cone, Tampa, for Appellee Interim Healthcare, Inc.
Edmund T. Woolfolk and John E. Dubose, Jr., Orlando, for Appellee Children's Medical Services.
P. Raul Alvarez, Jr., Winter Park, for Appellees Susan Personette, Judith Winans and Lyn Jones.
This appeal has been brought by Celina Roberts, as Personal Representative of the Estate of Nick Roberts, on behalf of the Estate of Nick Roberts, and on behalf of Celina Roberts, individually, surviving parent, and on behalf of Martin Roberts, individually, surviving parent (hereinafter collectively "parents"), to challenge the trial court's orders dismissing the parents' amended complaint with prejudice as to Interim Healthcare, Inc. ("Interim"), Susan Personette, Judith Winans, and Lyn Jones (hereinafter collectively "foster parents"), and the final judgments entered in favor of interim and the foster parents. We reverse because the trial court erred in concluding that the doctrine of governmental immunity required dismissal with prejudice at a hearing on a motion to dismiss the amended complaint.
The facts of the present case involve the untimely death of a child born in 1985 with a congenital birth defect which immobilized him and necessitated the use of a ventilator to sustain his life. The child required constant monitoring to ensure that his airway remained clear and unblocked. For economic reasons, the parents were forced to contact the Florida Department of Health and Rehabilitative Services for assistance and the child was placed in a medical foster home. Due to a tragic chain of events, while the child was unattended in the medical foster home, his airway became blocked and he died.
The parents brought an action against Children's Medical Services, Interim, and the foster parents for medical malpractice, negligent supervision, and for violation of section 409.175, Florida Statutes (Supp. 1996), relating to the licensure of family foster homes. Interim and the foster parents filed separate motions to dismiss asserting that they were immune from the civil lawsuit under the provisions of section 768.28, Florida Statutes (Supp.1996), because they were employees or agents of the State of Florida.
A hearing was conducted and, in ruling on the motions, the judge stated, "There is a fact that these foster care workers are indeed agents of the State, just because you don't plead it does not mean that the expense of litigation needs to continue and everything else." The trial court held that the parents were barred...
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