CS for SB 34                               First Engrossed (ntc)
    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.
   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,
  129  Be It Enacted by the Legislature of the State of Florida:
  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.