Bill Text: FL S0034 | 2010 | Regular Session | Engrossed

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Bill Title: Relief/Estrada/USF Board of Trustees [SPSC]

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2010-04-30 - Died in Messages [S0034 Detail]

Download: Florida-2010-S0034-Engrossed.html

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CS for SB 34                               First Engrossed (ntc) 
201034e1 
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 defects 
16  including 2-3 syndactyly, hypospadias, cryptorchidism, small for 
17  gestational age, cleft palate, simian creases in both hands, 
18  ears low set and rotated, micropenis, micronathia, intrauterine 
19  growth retardation, microcephaly, and dysmorphic face, and 
20         WHEREAS, these defects and conditions should have caused a 
21  geneticist to suspect and then confirm the diagnosis of Smith 
22  Lemli-Opitz syndrome, and 
23         WHEREAS, on June 28, 2002, the newborn nursery of Tampa 
24  General Hospital called for a genetic consultation concerning 
25  Aiden Estrada by Boris Kousseff, M.D., Director of Medical 
26  Genetics of the University of South Florida College of Medicine, 
27  and 
28         WHEREAS, Dr. Kousseff examined Aiden Estrada in St. 
29  Joseph’s Hospital on July 1, 2002, but failed to suspect or 
30  diagnose Smith-Lemli-Opitz syndrome, and 
31         WHEREAS, Dr. Kousseff followed the condition of Aiden 
32  Estrada as his treating geneticist and made an appointment for 
33  the Estradas to bring Aiden Estrada to his office at the 
34  University of South Florida Genetics Clinic on August 29, 2002, 
35  and 
36         WHEREAS, at the time of such appointment, Dr. Kousseff 
37  failed once again to suspect or diagnose Smith-Lemli-Opitz 
38  syndrome, and 
39         WHEREAS, Dr. Kousseff next saw Aiden Estrada and his 
40  parents at the University of South Florida Genetics Clinic on 
41  September 15, 2003, at which time it was apparent that Aiden was 
42  severely developmentally delayed, had severe psychomotor 
43  retardation, and was unable to take nutrition or hydration by 
44  mouth, requiring Aiden Estrada to depend on a gastrostomy tube 
45  that was surgically implanted through the abdominal and stomach 
46  wall in order to deliver nutrition and hydration, and 
47         WHEREAS, Dr. Kousseff again failed to suspect or diagnose 
48  Smith-Lemli-Opitz syndrome, and 
49         WHEREAS, Dr. Kousseff told Daniel and Amara Estrada that he 
50  believed Aiden Estrada’s problems did not indicate any genetic 
51  disorder and they could expect pregnancies with “normal” 
52  children, and 
53         WHEREAS, the standard of care calls for a geneticist under 
54  this situation, when he or she does not know the diagnosis, to 
55  advise parents that there is at least a 25 percent chance of 
56  recurrence of the defects in the next child, and 
57         WHEREAS, if the Estradas been told the truth of the 
58  possibility of recurrence of the birth defects in a subsequent 
59  child, the Estradas would have chosen not to conceive again but 
60  to adopt, and 
61         WHEREAS, instead, the parents relied on Dr. Kousseff’s 
62  advice and, after following all of the recommendations of Dr. 
63  Kousseff, conceived a second child, and 
64         WHEREAS, Amara Estrada gave birth to Caleb Estrada on 
65  November 18, 2004, at Shands Teaching Hospital of the University 
66  of Florida, and 
67         WHEREAS, Caleb had the same or similar symptoms as his 
68  older brother, Aiden Estrada, and 
69         WHEREAS, within an hour after his birth, the geneticist at 
70  the University of Florida diagnosed Caleb Estrada as having 
71  Smith-Lemli-Opitz syndrome, and 
72         WHEREAS, on the next day, November 19, 2004, Daniel and 
73  Amara Estrada brought Aiden Estrada to Shands Hospital to meet 
74  with the geneticist who diagnosed Aiden as having Smith-Lemli 
75  Opitz syndrome, and 
76         WHEREAS, the parents now had a second child who is severely 
77  impaired and who also would be totally reliant on a gastrostomy 
78  tube for nutrition and hydration and who would also require 24 
79  hour care and supervision, and 
80         WHEREAS, the physical, emotional, and financial resources 
81  of Daniel and Amara Estrada have been exhausted in trying to 
82  care for the severely impaired Aiden, who has needed 24-hour 
83  care and supervision and could not survive without a gastrostomy 
84  tube, and 
85         WHEREAS, the testimony of witnesses, testifying on behalf 
86  of the Estradas, as well as the witnesses testifying on behalf 
87  the University of South Florida, agreed that the care provided 
88  by Boris Kousseff, M.D., was completely below any acceptable 
89  standard in his failure to recognize and diagnose Smith-Lemli 
90  Opitz syndrome from Aiden Estrada’s many symptoms, and 
91         WHEREAS, Robert Steiner, M.D., a leading geneticist in 
92  Smith-Lemli-Opitz syndrome, testified that he could not 
93  comprehend how Dr. Kousseff could possibly tell the parents on 
94  September 15, 2003, that their chances of having a normal child 
95  were the same as anybody else’s, and 
96         WHEREAS, Dr. Steiner testified that the conduct of Dr. 
97  Kousseff was egregious, and 
98         WHEREAS, the rehabilitation experts testifying on behalf of 
99  the Estradas and the rehabilitation experts testifying on behalf 
100  of the University of South Florida agreed that Caleb Estrada 
101  needs one-on-one care 24 hours a day, 7 days a week, and 
102         WHEREAS, after a trial, the jury returned a verdict in 
103  favor of Daniel and Amara Estrada, as parents and guardians of 
104  Caleb Estrada, in the amount of $23,553,000, for the cost of 
105  care for Caleb Estrada, and 
106         WHEREAS, the jury assigned the University of South Florida 
107  90 percent liability for the wrongful birth of Caleb Estrada, 
108  and 
109         WHEREAS, the University of South Florida has a self 
110  insurance fund of $3 million through Health Science Insurance 
111  Company, and such funds have been paid into the plan or into 
112  premiums by the University of South Florida and can never be 
113  returned to the University of South Florida or to the State of 
114  Florida, and 
115         WHEREAS, the University of South Florida procured insurance 
116  (reinsurance) from Lloyds of London in the amount of $15 
117  million, and 
118         WHEREAS, the Health Science Insurance Plan provides that it 
119  will pay all costs taxed against the University of South Florida 
120  and all interest on the entire judgment up to the time the 
121  University of South Florida tenders $200,000 under its waiver of 
122  sovereign immunity, leaving $26,994.87 in costs and 
123  $3,798,518.05 in interest, 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 awarded under this act is intended to 
142  provide the sole compensation for all present and future claims 
143  arising out of the factual situation described in this act which 
144  resulted in the wrongful birth of Caleb Estrada. The total 
145  amount paid for attorney’s fees, lobbying fees, costs, and other 
146  similar expenses relating to this claim may not exceed 25 
147  percent of the total amount awarded under this act. 
148         Section 4. This act shall take effect upon becoming a law.