Bill Text: FL S0034 | 2012 | Regular Session | Introduced
Bill Title: Relief of Daniel and Amara Estrada by the University of South Florida
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-12-07 - Withdrawn prior to introduction -SJ 14 [S0034 Detail]
Download: Florida-2012-S0034-Introduced.html
Florida Senate - 2012 (NP) SB 34
By Senator Jones
13-00149-12 201234__
1 A bill to be entitled
2 An act for the relief of Daniel and Amara Estrada by
3 the University of South Florida; providing an
4 appropriation to compensate Daniel and Amara Estrada,
5 parents and guardians of Caleb Estrada, for the
6 wrongful birth of Caleb Estrada and for damages
7 sustained by Daniel and Amara Estrada as a result of
8 negligence of an employee of the University of South
9 Florida Board of Trustees; providing a limitation on
10 the payment of fees and costs; providing an effective
11 date.
12
13 WHEREAS, Amara and Daniel Estrada’s first child, Aiden
14 Estrada, was born on June 28, 2002, at Tampa General Hospital,
15 and
16 WHEREAS, Aiden Estrada was born with numerous birth
17 defects, including 2-3 syndactyly, hypospadias, cryptorchidism,
18 cleft palate, simian creases in both hands, low-set and rotated
19 ears, micropenis, micronathia, intrauterine growth retardation,
20 microcephaly, and dysmorphic face, and was small for gestational
21 age, and
22 WHEREAS, these defects and conditions should have caused a
23 geneticist to suspect and then confirm the diagnosis of Smith
24 Lemli-Opitz syndrome, and
25 WHEREAS, on June 28, 2002, the newborn nursery of Tampa
26 General Hospital called for a genetic consultation concerning
27 Aiden Estrada with Boris Kousseff, M.D., Director of Medical
28 Genetics of the University of South Florida College of Medicine,
29 and
30 WHEREAS, Dr. Kousseff examined Aiden Estrada in St.
31 Joseph’s Hospital on July 1, 2002, but failed to suspect or
32 diagnose Smith-Lemli-Opitz syndrome, and
33 WHEREAS, Dr. Kousseff followed the condition of Aiden
34 Estrada as his treating geneticist and made an appointment for
35 the Estradas to bring Aiden to his office at the University of
36 South Florida Genetics Clinic on August 29, 2002, 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 had 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 Hospital at the University of
67 Florida, and
68 WHEREAS, Caleb had the same or similar symptoms as his
69 older brother, Aiden Estrada, and
70 WHEREAS, within 1 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 to Shands Hospital to meet with the
75 geneticist, who diagnosed Aiden as having Smith-Lemli-Opitz
76 syndrome, and
77 WHEREAS, the parents now had a second child who is severely
78 impaired and who also will be totally reliant on a gastrostomy
79 tube for nutrition and hydration and who will 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 witnesses testifying on behalf of the Estradas
87 and the witnesses testifying on behalf of the University of
88 South Florida agreed that the care provided by Boris Kousseff,
89 M.D., was completely below any acceptable standard in his
90 failure to recognize and diagnose Smith-Lemli-Opitz syndrome
91 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 $21,197,700, 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, and
124 WHEREAS, the University of South Florida tendered $200,000
125 toward payment of this claim on April 2, 2009, and that payment
126 should be credited toward payment of the judgment amount, NOW,
127 THEREFORE,
128
129 Be It Enacted by the Legislature of the State of Florida:
130
131 Section 1. The facts stated in the preamble to this act are
132 found and declared to be true.
133 Section 2. The sum of $24,823,212.92 shall be paid by the
134 University of South Florida, provided the claim is paid
135 exclusively, or at least to the maximum extent possible, out of
136 insurance proceeds, including any bad-faith claim that may exist
137 against Lloyds of London under state law. These proceeds shall
138 be paid for the relief of Daniel and Amara Estrada, parents and
139 natural guardians of Caleb Estrada, for the wrongful birth of
140 Caleb Estrada.
141 Section 3. The amount paid pursuant to s. 768.28, Florida
142 Statutes, and the amount awarded under this act are intended to
143 provide the sole compensation for all present and future claims
144 arising out of the factual situation described in this act which
145 resulted in the wrongful birth of Caleb Estrada. The total
146 amount paid for attorney’s fees, lobbying fees, costs, and other
147 similar expenses relating to this claim may not exceed 25
148 percent of the total amount awarded under this act.
149 Section 4. This act shall take effect upon becoming a law.
