HB 1437

1	A bill to be entitled
2	An act for the relief of Daniel and Amara Estrada;
3	providing for the compensation of Daniel and Amara
4	Estrada, parents and guardians of Caleb Estrada, for the
5	wrongful birth of Caleb Estrada and for damages sustained
6	by Daniel and Amara Estrada as a result of negligence by
7	employees of the University of South Florida Board of
8	Trustees; providing for such compensation to be paid from
9	specified insurance proceeds; 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 defects
17	including 2-3 syndactyly, hypospadias, cryptorchidism, small for
18	gestational age, cleft palate, simian creases in both hands,
19	ears low set and rotated, micropenis, micronathia, intrauterine
20	growth retardation, microcephaly, and dysmorphic 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 $3,000,000 through Health Science Insurance
112	Company, which funds have been paid into a plan or into premiums
113	by the University of South Florida and can never be returned to
114	the University of South Florida or to the State of Florida, and
115	WHEREAS, the University of South Florida procured insurance
116	in the form of reinsurance from Lloyds of London in the amount
117	of $15,000,000, and
118	WHEREAS, Health Science Insurance Plan provides that it
119	will pay all costs taxed against the University of South Florida
120	in the amount of $26,994.87, and all interest on the entire
121	judgment up to the time at which the University of South Florida
122	tenders its payment of $200,000 under the limits of liability
123	set forth in s. 768.28, Florida Statutes, in the amount of
124	$3,798,518.05, NOW, THEREFORE,
125
126	Be It Enacted by the Legislature of the State of Florida:
127
128	Section 1.  The facts stated in the preamble to this act
129	are found and declared to be true.
130	Section 2.  The sum of $25,023,212.92 is to be paid by the
131	University of South Florida for the relief of Daniel and Amara
132	Estrada, parents and natural guardians of Caleb Estrada,
133	provided that the claim is to be paid exclusively, or at least
134	to the maximum extent possible, out of insurance proceeds,
135	including any bad faith claim that may exist against Lloyds of
136	London under Florida law, as compensation for the wrongful birth
137	of Caleb Estrada.
138	Section 3.  The amount awarded under this act is intended
139	to provide the sole compensation for all present and future
140	claims arising out of the factual situation described in this
141	act which resulted in the wrongful birth of Caleb Estrada. The
142	total amount paid for attorney's fees, lobbying fees, costs, and
143	other similar expenses relating to this claim may not exceed 25
144	percent of the total amount awarded under this act.
145	Section 4.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.