Bill Text: FL S0018 | 2011 | Regular Session | Introduced
Bill Title: Relief/Estrada/USF Board of Trustees
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S0018 Detail]
Download: Florida-2011-S0018-Introduced.html
Florida Senate - 2011 (NP) SB 18 By Senator Jones 13-00038-11 201118__ 1 A bill to be entitled 2 An act for the relief of Daniel and Amara Estrada; 3 providing an appropriation to compensate Daniel and 4 Amara Estrada, parents and guardians of Caleb Estrada, 5 for the wrongful birth of Caleb Estrada and for 6 damages sustained by Daniel and Amara Estrada as a 7 result of negligence by employees of the University of 8 South Florida Board of Trustees; providing a 9 limitation on the payment of fees and costs; providing 10 an effective date. 11 12 WHEREAS, Amara and Daniel Estrada’s first child, Aiden 13 Estrada, was born on June 28, 2002, at Tampa General Hospital, 14 and 15 WHEREAS, Aiden Estrada was born with numerous birth 16 defects, including 2-3 syndactyly, hypospadias, cryptorchidism, 17 small for gestational age, cleft palate, simian creases in both 18 hands, ears low set and rotated, micropenis, micronathia, 19 intrauterine growth retardation, microcephaly, and dysmorphic 20 face, and 21 WHEREAS, these defects and conditions should have caused a 22 geneticist to suspect and then confirm the diagnosis of Smith 23 Lemli-Opitz syndrome, and 24 WHEREAS, on June 28, 2002, the newborn nursery of Tampa 25 General Hospital called for a genetic consultation concerning 26 Aiden Estrada by Boris Kousseff, M.D., Director of Medical 27 Genetics of the University of South Florida College of Medicine, 28 and 29 WHEREAS, Dr. Kousseff examined Aiden Estrada in St. 30 Joseph’s Hospital on July 1, 2002, but failed to suspect or 31 diagnose Smith-Lemli-Opitz syndrome, and 32 WHEREAS, Dr. Kousseff followed the condition of Aiden 33 Estrada as his treating geneticist and made an appointment for 34 the Estradas to bring Aiden Estrada to his office at the 35 University of South Florida Genetics Clinic on August 29, 2002, 36 and 37 WHEREAS, at the time of such appointment, Dr. Kousseff 38 failed once again to suspect or diagnose Smith-Lemli-Opitz 39 syndrome, and 40 WHEREAS, Dr. Kousseff next saw Aiden Estrada and his 41 parents at the University of South Florida Genetics Clinic on 42 September 15, 2003, at which time it was apparent that Aiden was 43 severely developmentally delayed, had severe psychomotor 44 retardation, and was unable to take nutrition or hydration by 45 mouth, requiring Aiden Estrada to depend on a gastrostomy tube 46 that was surgically implanted through the abdominal and stomach 47 wall in order to deliver nutrition and hydration, and 48 WHEREAS, Dr. Kousseff again failed to suspect or diagnose 49 Smith-Lemli-Opitz syndrome, and 50 WHEREAS, Dr. Kousseff told Daniel and Amara Estrada that he 51 believed Aiden Estrada’s problems did not indicate any genetic 52 disorder and they could expect pregnancies with “normal” 53 children, and 54 WHEREAS, the standard of care calls for a geneticist under 55 this situation, when he or she does not know the diagnosis, to 56 advise parents that there is at least a 25 percent chance of 57 recurrence of the defects in the next child, and 58 WHEREAS, if the Estradas been told the truth of the 59 possibility of recurrence of the birth defects in a subsequent 60 child, the Estradas would have chosen not to conceive again but 61 to adopt, and 62 WHEREAS, instead, the parents relied on Dr. Kousseff’s 63 advice and, after following all of the recommendations of Dr. 64 Kousseff, conceived a second child, and 65 WHEREAS, Amara Estrada gave birth to Caleb Estrada on 66 November 18, 2004, at Shands Teaching Hospital of the University 67 of Florida, and 68 WHEREAS, Caleb had the same or similar symptoms as his 69 older brother, Aiden Estrada, and 70 WHEREAS, within an hour after his birth, the geneticist at 71 the University of Florida diagnosed Caleb Estrada as having 72 Smith-Lemli-Opitz syndrome, and 73 WHEREAS, on the next day, November 19, 2004, Daniel and 74 Amara Estrada brought Aiden Estrada to Shands Hospital to meet 75 with the geneticist who diagnosed Aiden as having Smith-Lemli 76 Opitz syndrome, and 77 WHEREAS, the parents now had a second child who is severely 78 impaired and who also would be totally reliant on a gastrostomy 79 tube for nutrition and hydration and who would also require 24 80 hour care and supervision, and 81 WHEREAS, the physical, emotional, and financial resources 82 of Daniel and Amara Estrada have been exhausted in trying to 83 care for the severely impaired Aiden, who has needed 24-hour 84 care and supervision and could not survive without a gastrostomy 85 tube, and 86 WHEREAS, the testimony of witnesses, testifying on behalf 87 of the Estradas, as well as the witnesses testifying on behalf 88 the University of South Florida, agreed that the care provided 89 by Boris Kousseff, M.D., was completely below any acceptable 90 standard in his failure to recognize and diagnose Smith-Lemli 91 Opitz syndrome from Aiden Estrada’s many symptoms, and 92 WHEREAS, Robert Steiner, M.D., a leading geneticist in 93 Smith-Lemli-Opitz syndrome, testified that he could not 94 comprehend how Dr. Kousseff could possibly tell the parents on 95 September 15, 2003, that their chances of having a normal child 96 were the same as anybody else’s, and 97 WHEREAS, Dr. Steiner testified that the conduct of Dr. 98 Kousseff was egregious, and 99 WHEREAS, the rehabilitation experts testifying on behalf of 100 the Estradas and the rehabilitation experts testifying on behalf 101 of the University of South Florida agreed that Caleb Estrada 102 needs one-on-one care 24 hours a day, 7 days a week, and 103 WHEREAS, after a trial, the jury returned a verdict in 104 favor of Daniel and Amara Estrada, as parents and guardians of 105 Caleb Estrada, in the amount of $23,553,000, for the cost of 106 care for Caleb Estrada, and 107 WHEREAS, the jury assigned the University of South Florida 108 90 percent liability for the wrongful birth of Caleb Estrada, 109 and 110 WHEREAS, the University of South Florida has a self 111 insurance fund of $3 million through Health Science Insurance 112 Company, and such funds have been paid into the plan or into 113 premiums by the University of South Florida and can never be 114 returned to the University of South Florida or to the State of 115 Florida, and 116 WHEREAS, the University of South Florida procured insurance 117 (reinsurance) from Lloyds of London in the amount of $15 118 million, and 119 WHEREAS, the Health Science Insurance Plan provides that it 120 will pay all costs taxed against the University of South Florida 121 and all interest on the entire judgment up to the time the 122 University of South Florida tenders $200,000 under its waiver of 123 sovereign immunity, leaving $26,994.87 in costs and 124 $3,798,518.05 in interest, and 125 WHEREAS, the University of South Florida tendered $200,000 126 toward payment of this claim on April 2, 2009, and that payment 127 should be credited toward payment of the judgment amount, NOW, 128 THEREFORE, 129 130 Be It Enacted by the Legislature of the State of Florida: 131 132 Section 1. The facts stated in the preamble to this act are 133 found and declared to be true. 134 Section 2. The sum of $24,823,212.92 shall be paid by the 135 University of South Florida, provided the claim is paid 136 exclusively, or at least to the maximum extent possible, out of 137 insurance proceeds, including any bad-faith claim that may exist 138 against Lloyds of London under state law. These proceeds shall 139 be paid for the relief of Daniel and Amara Estrada, parents and 140 natural guardians of Caleb Estrada, for the wrongful birth of 141 Caleb Estrada. 142 Section 3. The amount paid pursuant to s. 768.28, Florida 143 Statutes, and the amount awarded under this act are intended to 144 provide the sole compensation for all present and future claims 145 arising out of the factual situation described in this act which 146 resulted in the wrongful birth of Caleb Estrada. The total 147 amount paid for attorney’s fees, lobbying fees, costs, and other 148 similar expenses relating to this claim may not exceed 25 149 percent of the total amount awarded under this act. 150 Section 4. This act shall take effect upon becoming a law.