Vargas By and Through Vargas v. Glades General Hosp.

• Decision Date: 25 July 1990
• Docket Number: 88-3199,Nos. 87-2393,s. 87-2393
• Citation: 566 So.2d 282
• Parties: 15 Fla. L. Weekly D1909 Marisol VARGAS, a minor By and Through her mother and next friend, Olga VARGAS, and her father and next friend, Ruben Vargas, and Olga Vargas, individually, and Ruben Vargas, individually, Appellants, v. GLADES GENERAL HOSPITAL, the Florida Patients Compensation Fund and Rolando Piedra, Appellees.
• Court: Florida District Court of Appeals

Page 282

566 So.2d 282

15 Fla. L. Weekly D1909

Marisol VARGAS, a minor By and Through her mother and next friend, Olga VARGAS, and her father and next friend, Ruben Vargas, and Olga Vargas, individually, and Ruben Vargas, individually, Appellants, v. GLADES GENERAL HOSPITAL, the Florida Patients Compensation Fund and Rolando Piedra, Appellees.

Nos. 87-2393, 88-3199.

District Court of Appeal of Florida,

Fourth District.

July 25, 1990.

Rehearing Denied Sept. 24, 1990.

Edna L. Caruso of Edna L. Caruso, P.A., and Searcy, Denney, Scarola, Barnhart & Shipley, West Palm Beach, for appellants.

Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Eaton & Davis, P.A., Tallahassee, for appellee-Florida Patient's Compensation Fund.

Nancy P. Maxwell of Metzger & Sonneborn, P.A., West Palm Beach, for appellee-Glades General Hosp.

Robert M. Klein and Debra J. Snow of Stephens, Lynn, Klein & McNicholas, P.A., for appellee-Rolando Piedra, M.D.

WARNER, Judge.

The parents of a minor appeal a final summary judgment against them finding that their action against Glades General Hospital and Florida Patient's Compensation Fund is barred by the running of the statute of limitations found in section 768.28(11), Florida Statutes (1979). The appellants contend that the statute was tolled by fraudulent concealment of the facts so as to prevent them from discovering the defendants' negligence, or, alternatively, that the cause of action did not begin to run because they had neither notice of the negligent act giving rise to the injury or knowledge of the existence of an injury which was the consequence of a negligent act. From an extensive review of the record we conclude that the trial court properly granted summary judgment, and we affirm.

On October 10, 1979, Marisol Vargas, age sixteen months, was brought to Glades General Hospital because she was having seizures. The Vargas' family physician was called but did not reach the hospital for about fifty minutes. During that time the nurses were giving Marisol oxygen and aspirin suppositories for her fever and taking vital signs. Dr. Piedra, the family physician, ordered an I.V. to administer anti-convulsant medication. However, the nurses were unable to establish the line, and the doctor never tried to do so himself or call for help in order to administer the I.V. Instead the doctor gave Marisol an intramuscular injection of anti-convulsant medication and administered oxygen by mask. There is a conflict in the testimony as to whether Marisol became cyanotic at the hospital. However, Mr. Vargas testified that Marisol changed color and turned blue while he was with her in the Glades emergency room.

Piedra told the Vargases that he could do no more and arranged for Marisol's transport to Hendry General Hospital to the care of Dr. Valiant. Piedra did not accompany Marisol during the ambulance transfer. He admitted in his deposition that the paramedics were less capable of dealing with Marisol's seizures than he was. The Vargases accompanied their daughter in the ambulance and noted that Marisol was still cyanotic during the ride and continued to have seizures.

When Marisol arrived at Hendry General, she was having severe, hard, and constant seizures. She was cyanotic and had vomitus around her mouth and nose. Dr. Valiant attempted to establish an airway, while a nurse attempted to administer intravenous drugs. Because of her constant seizures and rigidity, an anesthesiologist was called to administer a general anesthesia to control the seizures. Dr. Valiant told the Vargases that Marisol needed to be transferred to Variety Children's Hospital in Miami.

Marisol remained in Variety Children's Hospital for two months and went through extensive diagnostic testing. The primary treating neurologist, Dr. Cullen, told the Vargases that Marisol had experienced brain damage as a result of the seizures but that it was impossible to say at that time what her prognosis might be. Although Dr. Cullen never told them that Marisol's brain damage was permanent, Mr. Vargas indicated that he had said, "Maybe she'll outgrow it."

When Marisol was discharged from the hospital she was in a semi-comatose state and was totally blind. She came back under the care of Dr. Valiant who was distraught by the amount of damage which had been done to Marisol. She formed the opinion that had Dr. Piedra properly treated Marisol at Glades General, the brain damage would have been avoided. That opinion was also shared by Dr. Cullen, although neither doctor told the Vargases of their conclusions. Both doctors determined that the prolonged period of hypoxia, or lack of oxygen to the brain, caused the brain damage. This occurred either from the failure of Dr. Piedra to get Marisol's seizures under control at Glades General or his failure to establish an airway. It was both doctors' opinion that both Piedra and Glades were negligent in their care of Marisol and that this negligence led to her brain damage.

Despite the massive brain damage, Marisol did make some improvement. About a year after the incident her sight returned. However, Marisol never learned to walk, talk, or feed herself. She continued to wear diapers. Nevertheless, the Vargases felt that she might continue to improve. It was not until after a subsequent displeasing experience at Glades General emergency room over four years later that Mrs. Vargas' brother suggested to them that perhaps Marisol might not have been in her current condition if she had received proper treatment for her seizures. This suit was subsequently filed.

Glades General moved for summary judgment on the basis that the four year statute of limitations against the state or its agencies contained in section 768.28(11), Florida Statutes (1979) had run. While more than four years had expired from Marisol's discharge from the hospital, appellants claim that the trial court erred in finding that the statute began to run in 1979. They claim either that the statute did not run because defendant Glades fraudulently concealed material information to prevent the appellants from learning of its negligence or, alternatively, that they were not on notice of an injury which was a consequence of a negligent act or of the negligent act itself, citing Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978).

While appellees contend that the statute of limitation contained within section 768.28(11), Florida Statutes (1979), providing for a waiver of sovereign immunity for state agencies may not be extended by fraud, concealment or misrepresentation, we disagree. Although the waiver should be strictly construed, Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983), statutes should also be construed in light of the manifest purpose to be achieved by the legislation. Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Service, Inc., 444 So.2d 926, 929 (Fla.1983). The doctrine of sovereign immunity rests on two public policy considerations: 1) the need to protect the public from exaggerated depletions of the public treasury, and 2) the need to administer the government in an orderly manner. Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla. 3d DCA 1981). In 1...