DATE: July 15, 1996
The Good Fight
In Her Son's Name, Waitress Elaina Valdes Gets
Florida to Write a New Medical Malpractice Law.
WHEN ELAINA VALDES FIRST walked through the marble rotunda of the
Florida state capitol in Tallahassee, she felt overwhelmed and utterly
out of place—a bright red dress in a sea of gray suits. But when the
32-year-old waitress began to address a committee of legislators, a hush
fell over the assembly. "As I was talking," she says, "it seemed like
you could hear a pin drop."
Last month—nearly two years after she had explained how Tony, her
4½-month-old son, was misdiagnosed and rendered sterile by inappropriate
surgery—Elaina Valdes finally got her wish: The legislature extended
Florida's statute of limitations governing malpractice suits on behalf
of small children. Under the old law, suits had to be filed within four
years of the alleged malpractice. Now they may be filed anytime before
the child reaches the age of 8. Remarkably, Valdes pursued her cause
despite the fact that she could not profit from it: Tony's suit, filed
fours years and 14 days after the alleged malpractice, was ruled
inadmissible under the old law.
Valdes had anticipated none of this in 1988 when she took her infant son
to a local hospital in West Palm Beach to have a hernia repaired. But
what was supposed to be a 45-minute outpatient surgery ended hours later
with a shocking announcement. "The doctor came out," Valdes recalls. "I
said, 'How's my son?' and he said, 'You don't have a son, you have a
daughter.' " When he told her he had discovered—but not removed—female
organs inside her son's body, Valdes demanded that chromosome tests be
done to determine gender.
The following weeks were "a horrible, horrible time," says Valdes. "I
would be in the grocery store, and people would say, "Oh what a cute
baby, is it a boy or girl?' The tears would just start to come—I didn't
know what to say." Even though to all appearances Tony was a boy, it
wasn't until the tests confirmed that he was genetically male that
Valdes could answer the question. Nonetheless, the doctor said, her son
had female organs that would have to be removed. Valdes got a concurring
opinion and finally accepted what she had been told.
It wasn't until three years later, when Tony underwent surgery to remove
the supposed female organs, that Valdes realized the tragic
misdiagnosis. Not only had there never been a gender abnormality, the
new surgeon told Valdes, but the previous operation had been so badly
botched that it had all but destroyed the boy's male organs. Valdes
decided to sue, but by the time she filed, she had missed the deadline.
It was then that the aggrieved mother became a crusader. "We'll just
have to change the law," she recalls saying. "There can't be another
child who suffered the way Tony did."
In her naïveté, Valdes had no idea she was taking on two of the state's
most powerful lobbies: the insurance industry and the medical
establishment. "One legislator told me, 'Honey, you're against the big
boys; it ain't gonna happen,' " she recalls. For several months it
didn't. But after the initial frustrations, Valdes discovered an ally in
the Academy of Florida Trial Lawyers. In the fall of 1994 she showed up
at the offices of Ted Babbitt, a high-profile malpractice lawyer, to ask
for help. "I don't see people unannounced," Babbitt says. "But she
struck up a conversation with my receptionist, who came in and told me I
might want to speak with this woman." Babbitt immediately pledged his
assistance in drawing up a bill.
The daughter of a bowling-pinsetter-machine mechanic and his wife, a
secretary, Valdes, who grew up in West Palm Beach, married her first
love at 19 and promptly had a daughter, Nikki, now 12. Her second
marriage, which also ended in divorce, produced Tony, now 8, and in 1993
she married Joe Valdes, 37, a carpenter and the father of her youngest
child, Danielle, 2.
From the beginning, Joe and the children rallied around Elaina's cause.
Once she had a bill to promote, Valdes launched a relentless lobbying
campaign by phone and fax. She also made six trips to the capital—maxing
out her credit card to pay for plane tickets—so she could be present
when the bill was debated. At session's end, though, it was dropped from
the agenda. "A lesser person," Babbit says, "would have quit." Valdes
did not. "I was devastated," she says, "but I didn't lose it. I just
said, 'We'll have to be stronger next year.' "
After a summer spent gathering support from various advocacy groups,
Valdes had to weather increasingly virulent personal attacks from
lobbyists. "I didn't think they played that dirty," she says, "but they
do." Still she pressed on.
In May the power of Tony's story and his mother's persistence finally
paid off. After passing "Tony's bill," the gray suits of authority rose
to applaud Valdes in her red dress. "When Governor Chiles finally
signed," she says. "I was crying. I couldn't believe that the day
CINDY DAMPIER in West Palm Beach
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