Florida Senate - 2010 (Corrected Copy)(NP) SB 34 By Senator Jones 40-00136-10 201034__ 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 NOW, THEREFORE, 109 110 Be It Enacted by the Legislature of the State of Florida: 111 112 Section 1. The facts stated in the preamble to this act are 113 found and declared to be true. 114 Section 2. (1) The sum of $21,197,700 is appropriated from 115 the General Revenue Fund to the University of South Florida 116 Board of Trustees for the relief of Daniel and Amara Estrada, 117 parents and guardians of Caleb Estrada, for the wrongful birth 118 of Caleb Estrada. 119 (2) The Chief Financial Officer is directed to draw a 120 warrant in favor of Daniel and Amara Estrada, as parents and 121 guardians of Caleb Estrada, in the sum of $21,197,700 upon funds 122 of the University of South Florida Board of Trustees and to pay 123 the same out of such funds. 124 Section 3. The amount awarded under this act is intended to 125 provide the sole compensation for all present and future claims 126 arising out of the factual situation described in this act which 127 resulted in the wrongful birth of Caleb Estrada. The total 128 amount paid for attorney’s fees, lobbying fees, costs, and other 129 similar expenses relating to this claim may not exceed 25 130 percent of the total amount awarded under this act. 131 Section 4. This act shall take effect upon becoming a law.