Florida Senate - 2012                              (NP)    SB 34
       By Senator Jones
       13-00149-12                                             201234__
    1                        A bill to be entitled                      
    2         An act for the relief of Daniel and Amara Estrada by
    3         the University of South Florida; providing an
    4         appropriation to compensate Daniel and Amara Estrada,
    5         parents and guardians of Caleb Estrada, for the
    6         wrongful birth of Caleb Estrada and for damages
    7         sustained by Daniel and Amara Estrada as a result of
    8         negligence of an employee of the University of South
    9         Florida Board of Trustees; providing a limitation on
   10         the payment of fees and costs; providing an effective
   11         date.
   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
   17  defects, including 2-3 syndactyly, hypospadias, cryptorchidism,
   18  cleft palate, simian creases in both hands, low-set and rotated
   19  ears, micropenis, micronathia, intrauterine growth retardation,
   20  microcephaly, and dysmorphic face, and was small for gestational
   21  age, and
   22         WHEREAS, these defects and conditions should have caused a
   23  geneticist to suspect and then confirm the diagnosis of Smith
   24  Lemli-Opitz syndrome, and
   25         WHEREAS, on June 28, 2002, the newborn nursery of Tampa
   26  General Hospital called for a genetic consultation concerning
   27  Aiden Estrada with Boris Kousseff, M.D., Director of Medical
   28  Genetics of the University of South Florida College of Medicine,
   29  and
   30         WHEREAS, Dr. Kousseff examined Aiden Estrada in St.
   31  Joseph’s Hospital on July 1, 2002, but failed to suspect or
   32  diagnose Smith-Lemli-Opitz syndrome, and
   33         WHEREAS, Dr. Kousseff followed the condition of Aiden
   34  Estrada as his treating geneticist and made an appointment for
   35  the Estradas to bring Aiden to his office at the University of
   36  South Florida Genetics Clinic on August 29, 2002, 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 had 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 Hospital at the University of
   67  Florida, and
   68         WHEREAS, Caleb had the same or similar symptoms as his
   69  older brother, Aiden Estrada, and
   70         WHEREAS, within 1 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 to Shands Hospital to meet with the
   75  geneticist, who diagnosed Aiden as having Smith-Lemli-Opitz
   76  syndrome, and
   77         WHEREAS, the parents now had a second child who is severely
   78  impaired and who also will be totally reliant on a gastrostomy
   79  tube for nutrition and hydration and who will 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 witnesses testifying on behalf of the Estradas
   87  and the witnesses testifying on behalf of the University of
   88  South Florida agreed that the care provided by Boris Kousseff,
   89  M.D., was completely below any acceptable standard in his
   90  failure to recognize and diagnose Smith-Lemli-Opitz syndrome
   91  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 $21,197,700, 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 million through Health Science Insurance
  112  Company, and such funds have been paid into the plan or into
  113  premiums by the University of South Florida and can never be
  114  returned to the University of South Florida or to the State of
  115  Florida, and
  116         WHEREAS, the University of South Florida procured insurance
  117  (reinsurance) from Lloyds of London in the amount of $15
  118  million, and
  119         WHEREAS, the Health Science Insurance Plan provides that it
  120  will pay all costs taxed against the University of South Florida
  121  and all interest on the entire judgment up to the time the
  122  University of South Florida tenders $200,000 under its waiver of
  123  sovereign immunity, 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 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.