Association For Retarded Citizens-Volusia v. Fletcher

741 So.2d 520 (Fl.App. 1999)

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Nature of the Case

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Facts

D is a nonprofit organization that has provided services and programs to persons with developmental disabilities in Volusia County since 1962. D has a summer camp. P's son, Nathan, was seventeen years old and had a severe developmental disability and suffered grand mal seizures. P indicated that Nathan suffered from grand mal seizures and was taking prescription medication for this condition. This information was not shared with Nathan's camp counselor or the pool lifeguards. 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. Nathan was required to remain in the shallow end of the pool. Nathan crossed under the rope to a point in the deep end of the pool. 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. He was 'jerking around.' Nathan did not appear to be breathing, but the lifeguard was able to resuscitate him. 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. P sued D. D denied 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. P moved for summary judgment on D'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 D. The Florida Legislature which 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 plaintiff's initial injury. The trial court entered summary judgment in favor of P thereby prohibiting D from pleading, proving, or arguing that the medical providers who treated Nathan after the accident negligently aggravated his injuries. D renewed its affirmative defense at trial, but neither expert testified that it was more likely that Nathan would have survived the swimming accident had he been transported to a closer hospital. After hearing the experts' testimony, the trial court let the earlier summary judgment ruling stand. P got the verdict and D appealed.