HB 545

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 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 a limitation on the payment of fees
9	and costs; providing an effective date.
10
11	WHEREAS, Amara and Daniel Estrada's first child, Aiden
12	Estrada, was born on June 28, 2002, at Tampa General Hospital,
13	and
14	WHEREAS, Aiden Estrada was born with numerous birth
15	defects, including 2-3 syndactyly, hypospadias, cryptorchidism,
16	small for gestational age, cleft palate, simian creases in both
17	hands, ears low set and rotated, micropenis, micronathia,
18	intrauterine growth retardation, microcephaly, and dysmorphic
19	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
132	are 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.

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