CS/HB 545

1
A bill to be entitled
2An act for the relief of Daniel and Amara Estrada;
3providing an appropriation to compensate Daniel and Amara
4Estrada, parents and guardians of Caleb Estrada, for the
5wrongful birth of Caleb Estrada and for damages sustained
6by Daniel and Amara Estrada as a result of negligence by
7employees of the University of South Florida Board of
8Trustees; providing a limitation on the payment of fees
9and costs; providing an effective date.
10
11     WHEREAS, Amara and Daniel Estrada's first child, Aiden
12Estrada, was born on June 28, 2002, at Tampa General Hospital,
13and
14     WHEREAS, Aiden Estrada was born with numerous birth
15defects, including 2-3 syndactyly, hypospadias, cryptorchidism,
16small for gestational age, cleft palate, simian creases in both
17hands, ears low-set and rotated, micropenis, micronathia,
18intrauterine growth retardation, microcephaly, and dysmorphic
19face, and
20     WHEREAS, these defects and conditions should have caused a
21geneticist to suspect and then confirm the diagnosis of Smith-
22Lemli-Opitz syndrome, and
23     WHEREAS, on June 28, 2002, the newborn nursery of Tampa
24General Hospital called for a genetic consultation concerning
25Aiden Estrada by Boris Kousseff, M.D., Director of Medical
26Genetics of the University of South Florida College of Medicine,
27and
28     WHEREAS, Dr. Kousseff examined Aiden Estrada in St.
29Joseph's Hospital on July 1, 2002, but failed to suspect or
30diagnose Smith-Lemli-Opitz syndrome, and
31     WHEREAS, Dr. Kousseff followed the condition of Aiden
32Estrada as his treating geneticist and made an appointment for
33the Estradas to bring Aiden Estrada to his office at the
34University of South Florida Genetics Clinic on August 29, 2002,
35and
36     WHEREAS, at the time of such appointment, Dr. Kousseff
37failed once again to suspect or diagnose Smith-Lemli-Opitz
38syndrome, and
39     WHEREAS, Dr. Kousseff next saw Aiden Estrada and his
40parents at the University of South Florida Genetics Clinic on
41September 15, 2003, at which time it was apparent that Aiden was
42severely developmentally delayed, had severe psychomotor
43retardation, and was unable to take nutrition or hydration by
44mouth, requiring Aiden Estrada to depend on a gastrostomy tube
45that was surgically implanted through the abdominal and stomach
46wall in order to deliver nutrition and hydration, and
47     WHEREAS, Dr. Kousseff again failed to suspect or diagnose
48Smith-Lemli-Opitz syndrome, and
49     WHEREAS, Dr. Kousseff told Daniel and Amara Estrada that he
50believed Aiden Estrada's problems did not indicate any genetic
51disorder and they could expect pregnancies with "normal"
52children, and
53     WHEREAS, the standard of care calls for a geneticist under
54this situation, when he or she does not know the diagnosis, to
55advise parents that there is at least a 25 percent chance of
56recurrence of the defects in the next child, and
57     WHEREAS, if the Estradas been told the truth of the
58possibility of recurrence of the birth defects in a subsequent
59child, the Estradas would have chosen not to conceive again but
60to adopt, and
61     WHEREAS, instead, the parents relied on Dr. Kousseff's
62advice and, after following all of the recommendations of Dr.
63Kousseff, conceived a second child, and
64     WHEREAS, Amara Estrada gave birth to Caleb Estrada on
65November 18, 2004, at Shands Teaching Hospital of the University
66of Florida, and
67     WHEREAS, Caleb had the same or similar symptoms as his
68older brother, Aiden Estrada, and
69     WHEREAS, within an hour after his birth, the geneticist at
70the University of Florida diagnosed Caleb Estrada as having
71Smith-Lemli-Opitz syndrome, and
72     WHEREAS, on the next day, November 19, 2004, Daniel and
73Amara Estrada brought Aiden Estrada to Shands Hospital to meet
74with the geneticist who diagnosed Aiden as having Smith-Lemli-
75Opitz syndrome, and
76     WHEREAS, the parents now had a second child who is severely
77impaired and who also would be totally reliant on a gastrostomy
78tube for nutrition and hydration and who would also require 24-
79hour care and supervision, and
80     WHEREAS, the physical, emotional, and financial resources
81of Daniel and Amara Estrada have been exhausted in trying to
82care for the severely impaired Aiden, who has needed 24-hour
83care and supervision and could not survive without a gastrostomy
84tube, and
85     WHEREAS, the testimony of witnesses, testifying on behalf
86of the Estradas, as well as the witnesses testifying on behalf
87the University of South Florida, agreed that the care provided
88by Boris Kousseff, M.D., was completely below any acceptable
89standard in his failure to recognize and diagnose Smith-Lemli-
90Opitz syndrome from Aiden Estrada's many symptoms, and
91     WHEREAS, Robert Steiner, M.D., a leading geneticist in
92Smith-Lemli-Opitz syndrome, testified that he could not
93comprehend how Dr. Kousseff could possibly tell the parents on
94September 15, 2003, that their chances of having a normal child
95were the same as anybody else's, and
96     WHEREAS, Dr. Steiner testified that the conduct of Dr.
97Kousseff was egregious, and
98     WHEREAS, the rehabilitation experts testifying on behalf of
99the Estradas and the rehabilitation experts testifying on behalf
100of the University of South Florida agreed that Caleb Estrada
101needs one-on-one care 24 hours a day, 7 days a week, and
102     WHEREAS, after a trial, the jury returned a verdict in
103favor of Daniel and Amara Estrada, as parents and guardians of
104Caleb Estrada, in the amount of $23,553,000, for the cost of
105care for Caleb Estrada, and
106     WHEREAS, the jury assigned the University of South Florida
10790 percent liability for the wrongful birth of Caleb Estrada,
108and
109     WHEREAS, the University of South Florida tendered $200,000,
110pursuant to the statutory limits of liability set forth in s.
111768.28, Florida Statutes, NOW, THEREFORE,
112
113Be It Enacted by the Legislature of the State of Florida:
114
115     Section 1.  The facts stated in the preamble to this act
116are found and declared to be true.
117     Section 2.  The sum of $7,500,000 shall be paid by the
118University of South Florida to Daniel and Amara Estrada, parents
119and natural guardians of Caleb Estrada.
120     Section 3.  The amount paid pursuant to s. 768.28, Florida
121Statutes, and the amount awarded under this act are intended to
122provide the sole compensation for all present and future claims
123arising out of the factual situation described in this act which
124resulted in the wrongful birth of Caleb Estrada. The total
125amount paid for attorney's fees, lobbying fees, costs, and other
126similar expenses relating to this claim may not exceed 25
127percent of the total amount awarded under this act.
128     Section 4.  This act shall take effect upon becoming a law.


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