The Good Fight

UPDATED 07/15/1996 at 01:00 AM EDT Originally published 07/15/1996 at 01:00 AM EDT

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 actually came."

CALVIN BAKER
CINDY DAMPIER in West Palm Beach

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