10-009570CB In Re: Senate Bill 18 (Daniel And Amara Estrada) vs. * Status: Closed DOAH Final Order on Tuesday, February 1, 2011.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2/1/11 SM Unfavorable

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 18 (2011) Î Senator Dennis L. Jones

Relief of Daniel and Amara Estrada

SPECIAL MASTERÓS FINAL REPORT

BASED ON A JURY AWAR D OF MORE THAN $20

MILLION AGAINST THE UNIVERSITY OF SOUTH

FLORIDA, THIS CONTES TED EXCESS JUDGMENT

CLAIM ARISES FROM TH E "WRONGFUL BIRTH" O F

CALEB ESTRADA, A CHI LD WHO, BECAUSE OF A

GEN ETIC DISORDER, WILL REQUIRE A LIFETIME O F

EXTRAORDINARY CARE.

FINDINGS OF FACT: On June 28, 2002, Amara Estrada gave birth to a son, whom

she and her husband Daniel named Aiden. Aiden was the

couple's first child.

Aiden was delivered at Tampa General Hospital. He had a

number of patent physical abnormalities. Consequently, a

referral was made for Aiden to be seen by Dr. Boris

Kousseff, who was, at the time, a professor of medicine at

the University of South Florida (USF) College of Medicine

and the Director of the Division of Medical Genetics in USF's

Department of Pediatrics. Dr. Kousseff first examined Aiden

on July 1, 2002. He saw the infant for a second time about

two months later, on August 29, 2002. Arrangements were

made for Dr. Kousseff to see Aiden again after 12 months.

Dr. Kousseff did not, during either of the visits in 2002,

diagnose Aiden as having any particular genetic disease or

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February 1, 2011

Page 2

syndrome. In fact, however, Aiden was suffering from a

condition known as Smith - Lemli - Opitz Syndrome (S LO), a

genetic disorder that produces a constellation of physical

and cognitive impairments, many of which Aiden had been

born with. Dr. Kousseff's failure to diagnose SLO in Aiden

was a breach of the accepted standard of care for

geneticists.

Not long after Aiden's birth, the Estradas moved from Tampa

to Orlando. In Tampa, Aiden had been receiving early

intervention services from the state. To continue receiving

these services in Orlando, Aiden needed to be examined by

the local provider; as a result, he was seen by Dr. Lynda

Pollack on November 7, 2002. Dr. Pollack is a pediatrician.

She happens also to be a geneticist.

Dr. Pollack performed a pediatric evaluation of Aiden. In her

chart, however, she noted that blood for a cholesterol t est

should be obtained. The purpose for conducting a

cholesterol test would have been to diagnose SLO, which

Dr. Pollack suspected Aiden might have. Dr. Pollack did not

herself order the test, however, nor did she recommend to

the Estradas or any of Aide n's medical providers that the test

be administered. It is reasonably likely that if Dr. Pollack had

followed through to ensure that the cholesterol test was

performed, Aiden's true condition, which remained

undiagnosed, would have been discovered before Amara

Estrada became pregnant again. Dr. Pollack's failure to act

on her own suggestion to recommend a cholesterol test was

a breach of the accepted standard of care for physicians.

Months passed, and the severity of Aiden's multiple

impairments became i ncreasingly manifest. He had

profound developmental delays. Further, being unable to

eat or drink by mouth, Aiden was forced to depend on a

gastronomy tube (G - tube), which had been surgically placed

through the wall of his stomach, for nutrition and hydr ation.

The Estradas remained unaware that Aiden had a discrete

genetic disorder; they were, however, understandably

worried that their next child, were they to have one, would

have the same birth defects as Aiden. They decided that

unless they could be a ssured that the risk of recurrence

were negligible, they would adopt rather than take a chance

on having another special needs child.

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The question that was foremost in the Estradas' minds when

they brought Aiden to see Dr. Kousseff on September 15,

2003, was whether they could have another child without the

recurrence of Aiden's birth defects. Dr. Kousseff told the

couple that, because Aiden's condition did not fit a particular

syndrome, they could expect to have normal children going

forward. He advised them that Amara should, if pregnant,

have fetal sonograms taken at 16 and 23 weeks into the

pregnancy, to rule out the presence of birth defects. Dr.

Kousseff put his mistaken judgment regarding the chance of

recurrence in a letter to the Estradas, which was dated

September 15, 2003. Dr. Kousseff's faulty risk assessment

fell below the standard of care for geneticists faced with this

situation, which calls for the doctor to advise parents whose

first child has birth defects of unknown etiology that there is

at least a 25 percent chance of those defects recurring in

their next child.

Having received the "green light" from Dr. Kousseff, Daniel

and Amara elected to have another child. Amara became

pregnant in early 2004. Her pregnancy progressed normally.

The ultrasound scans that Dr. Kousseff had recommended

were conducted and gave no cause for concern. SLO is not

detectable through sonography. It can be diagnosed by an

amniotic fluid test, but, because Aiden had not been

diagnosed with SLO, amniocente sis was not indicated for

Amara, who Ï in light of Dr. Kousseff's report Ï was not

believed to be at risk of carrying a child having hereditary

abnormalities.

On November 18, 2004, Amara gave birth to Caleb Estrada,

who was delivered at Shands Teaching Hosp ital in

Gainesville. Caleb, unfortunately, had the same birth

defects as his brother Aiden. In short order, the doctors at

Shands determined that Caleb's congenital anomalies were

the result of SLO. Having correctly diagnosed Caleb, the

doctors next exa mined Aiden and concluded that he, too,

had SLO.

Caleb Estrada has serious deformities and impairments. It is

unlikely that he will ever walk normally, although he might

someday be able to "functionally ambulate." He will not be

able to talk or effectiv ely communicate due to cognitive

deficits. He cannot currently eat or drink and must be fed

through a G - tube, a situation that is likely permanent, though

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not necessarily so. In short, while some improvement in his

situation is possible, Caleb will never be able to care for

himself; rather, he will need continual care around the clock,

seven days per week, for the rest of his life.

The Estradas have health insurance that has paid, and

continues to pay, many of Caleb's medical expenses. Their

insurer, Bl ue Cross/Blue Shield, has asserted a lien of

approximately $25,500, which would be paid from the

proceeds of the claim bill.

Caleb is currently receiving special education services in the

public schools of Alachua County. He is not presently

eligible for public assistance, such as Medicaid, because his

parents' income is too high to qualify. (Amara, a veterinary

cardiologist, is an assistant professor of veterinary medicine

at the University of Florida. Daniel works as an administrator

in UF's Departmen t of Pediatrics; as of the final hearing,

however, Daniel had been notified that he would be laid off

at the end of the year.)

The parties sharply dispute the present value of the cost of

Caleb's future extraordinary care. The Claimants' experts

offered a detailed "continuum of care" plan, the present

value of which, according to their economist, is about $25

million. In contrast, USF's experts placed the present value

of Caleb's life care expenses at between, roughly, $2.5

million and $3.8 million. USF 's proposed lifetime care plan

affords fewer services than the Claimants' plan and assumes

that Caleb will not live past the age of 40, whereas the

Claimants assume that Caleb will have a normal lifespan.

USF also has argued, in this proceeding, that Cale b's future

financial needs can be adequately covered by purchasing an

annuity, which, USF asserts, could be obtained for $1 million

to $3 million from a reputable insurance company.

At the conclusion of the trial in the civil action that the

Estradas br ought against USF, which will be discussed

below, the jury returned a verdict in favor of the Estradas,

awarding them $18.5 million as the present value of the cost

of providing Caleb's future extraordinary care. Having

considered the evidence and argumen ts presented at the

trial and in this proceeding, the undersigned finds no basis

for disturbing the jury's assessment of this item of damages.

The sum of $18.5 million is a reasonably accurate

SPECIAL MASTERÓS FINAL REPORT Î SB 18 (2011)

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determination of the present value of the future economic

expe nses associated with the lifetime of extraordinary care

Caleb will need.

In addition to the award for future medical expenses, the jury

found that Caleb's parents had incurred $53,000 in past

extraordinary expenses in caring for him. USF has not

challeng ed this item of damages. It is determined that the

sum of $53,000 is, as the jury found, a reasonably accurate

assessment of the Estradas' past economic losses.

Finally, the jury found that Daniel and Amara Estrada had

endured "pain and suffering" for wh ich each should be

awarded $2.5 million. There is no formula, no scientific or

mathematic method, for determining the appropriate amount

of an award for pain and suffering. While the undersigned

does not believe that the jury's determination in this rega rd

was unreasonable under the circumstances, he nevertheless

finds, for reasons that will be discussed below, that

noneconomic damages should be limited to $500,000 per

parent.

The jury in the civil trial was asked to compare the

negligence of Dr. Kousseff to that of Dr. Pollack and

apportion the fault between them by percentages. The jury

determined that Dr. Kousseff's negligence comprised 90

percent of the cause of Caleb's "wrongful birth," while finding

Dr. Pollack 10 percent at fault.

While th e undersigned might have placed less blame on Dr.

Pollack, whose negligence did not change the status quo (in

which Amara had no intention of becoming pregnant) and

thus would not, without Dr. Kousseff's subsequent, faulty

assessment of the risk of recurre nce, have proximately led to

Caleb's birth, he nonetheless considers the jury's

apportionment of the fault to be consistent with the evidence

and will defer to the jury's collective wisdom in the matter. It

is found, therefore, that Dr. Kousseff was 90 pe rcent

responsible for the birth, Dr. Pollack 10 percent.

LEGAL PROCEEDINGS: In January 2006, the Estradas individually, and as the

parents and guardians of Caleb, brought a "wrongful birth"

action against USF based on the negligence of Dr. Kousseff.

The action was filed in the circuit court in Hillsborough

County.

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The case was tried before a jury in July 2007. The court

directed a verdict in favor of the plaintiffs with regard to

USF's liability, finding that Dr. Kousseff had been negligent

as a matter of law, and that his negligence was a legal cause

of Caleb's birth. The jury returned a verdict awarding the

Estradas, as Caleb's guardians, a total of $18,553,000 in

damages, broken down as follows: (a) $53,000 for

economic losses; and (b) $18.5 million for future economic

expenses. The jury further awarded Daniel and Amara

Estrada, as individuals, $1.5 million each for past mental

anguish resulting from Caleb's birth, and an additional $1

million each for future mental anguish, for a total of $2.5

mill ion in pain and suffering damages per parent.

The jury apportioned the fault for Caleb's birth as follows:

Dr. Kousseff, 90 percent; Dr. Pollack, 10 percent.

On August 17, 2007, in accordance with the jury's

apportionment of fault, the trial court enter ed a judgment

against USF and in favor of: (a) Daniel and Amara Estrada,

as guardians, in the amount of $16,697,700; (b) Daniel

Estrada, individually, in the amount of $2.25 million; and (c)

Amara Estrada, individually, in the amount of $2.25 million.

A cost judgment also was entered, awarding the Estradas

$26,994.87.

USF appealed the judgment. On March 2, 2009, the Second

District Court of Appeal affirmed, per curiam.

USF paid the Estradas $200,000 under the sovereign

immunity cap.

CLAIMANTS' ARGUMENTS: USF is vicariously liable for the negligence of its employee,

Dr. Kousseff, whose negligent advice regarding the risk of

Aiden's birth defects recurring in a second child deprived the

Estradas of the opportunity to avoid conception or terminate

a pregnancy. As a consequence of Dr. Kousseff's

negligence, the Estradas have incurred, and will continue to

incur, extraordinary expenses in caring for Caleb, whose

significant impairments render him permanently incapable of

caring for himself. The Clai mants urge that a claim bill be

enacted awarding them the entire excess judgment of

$20,997,700, together with $26,994.87 in costs, and

approximately $3.8 million in interest. (The claim for interest

SPECIAL MASTERÓS FINAL REPORT Î SB 18 (2011)

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is based on an argument concerning the availability o f

insurance coverage, which will be discussed below.)

RESPONDENT'S ARGUMENTS: USF does not dispute that Dr. Kousseff was negligent in

failing to diagnose Aiden with SLO and advising the

Estradas that Aiden's birth defects did not signify an

increased ri sk that a second child would be similarly

impaired. Instead, USF makes a number of arguments, the

goal of which is to urge defeat of the bill primarily on policy

grounds. These arguments include:

(a) "Wrongful birth" is a rare and controversial cause of

action. Dr. Kousseff's negligence did not cause Caleb's birth

defects. Caleb's life is not "wrongful" and, though caring for

him poses challenges, his parents love him and are enriched

by his existence. Sovereign immunity should not be waived

to prov ide compensation in a situation where, as here, a

human being would not be in existence but for the

negligence of the public employee.

(b) The verdict was excessive. The pain and suffering

damages awarded to the parents individually far exceeded a

ratio nal assessment of their suffering. Moreover, the

continuum of care plan for Caleb that the Claimants offered

at trial was full of services that either Caleb does not need or

will be paid for by insurance or through governmental

programs such as the educat ional services available in the

public schools. Not only that, the Claimants' continuum of

care plan was based on a normal life expectancy, when a

lifespan of 20 or 30 years is more likely. The damages

should not have exceeded $3 million.

(c) Dr. Polla ck's negligence was a supervening cause of the

"wrongful birth." The jury should have found her 100 percent

liable Ï or at least much more at fault than 10 percent.

Ultimately, it is USF's position that there is no compelling

reason to enact the instant cl aim bill, which should be

rejected in its entirety.

CONCLUSIONS OF LAW: As provided in s. 768.28, F lorida Statutes (2010), sovereign

immunity shields USF against tort liability in excess of

$200,000 per occurrence. See Eldred v. North Broward

Hospital District , 498 So. 2d 911, 914 (Fla. 1986); Paushter

v. South Broward

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Hospital District , 664 So. 2d 1032, 1033 (Fla. 4th DCA

1995).

Under the doctrine of respondeat superior, USF is

vicariously liable for the negligent acts of its agents and

employees, when such acts are within the course and scope

of the agency or employment. See Roessler v. Novak , 858

So. 2d 1158, 1161 (Fla. 2d DCA 2003). Dr. Kousseff was an

employee of USF and was acting in the course and scope of

his employment when treating Aiden Estrada. Accordingly,

Dr. Kousseff's negligence in connection with his care of

Aiden, including the bad advice given to the Estradas

regarding the risk of recurrence, is attributable to USF.

The Florida Supreme Court, in Kush v. Lloyd , 616 So. 2d

415 (F la. 1992), recognized the existence of a cause of

action for "wrongful birth," explaining that the claim is "a

species of medical malpractice" arising from the birth of "an

impaired or deformed child," where the parents allege that

"negligent treatment or advice deprived them of the

opportunity or knowledge to avoid conception or to terminate

the pregnancy." Id. at 417 n.2. The purpose of such an

action is to "recover damages for the extraordinary expense

of caring for the impaired or deformed child, over and above

routine rearing expenses." Id. Such damages, being for the

benefit of the child, should be placed in trust. Id. at 424. In

addition to economic damages, the parents in a "wrongful

birth" action are entitled to recover individually for "menta l

anguish caused by the birth of a deformed child." Id. at 422 -

23.

The facts of this case are similar to those of Kush , where, as

here, the doctor advised parents that their son's birth defects

were an accident of nature and that they could have another

child without incident. Id. at 417. The parents in Kush , as

the Estradas did in this case, subsequently had another

child, who had the same birth defects as their first child. Id.

It is concluded based on Kush that Dr. Kousseff's negligence

proximately caused the "wrongful birth" of Caleb Estrada, for

which USF is liable.

Generally speaking, each joint tortfeasor whose negligence

was a proximate cause of the plaintiff's injury is liable for his

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or her share of the damages, under comparative fault

princ iples. In this case, the jury apportioned the fault

between Dr. Kousseff, whose employer the Estradas had

sued, and Dr. Pollack, whom the defendant had named as a

joint tortfeasor pursuant to a Fabre defense. See Fabre v.

Marin , 623 So. 2d 1182 (Fla. 199 3). USF, recall, was found

by the jury to have been 90 percent at fault, due to the

actions of Dr. Kousseff, and Dr. Pollack 10 percent at fault.

A negligent party is not liable for someone else's injury,

however, if a separate force or action was "the active and

efficient intervening cause, the sole proximate cause or an

independent cause." Department of Transp. v. Anglin , 502

So. 2d 896, 898 (Fla. 1987). Such a superve ning act of

negligence so completely disrupts the chain of events set in

train by the original tortfeasor's conduct that any negligence

which occurred before the supervening act is considered too

remote to be the proximate cause of any injury resulting fro m

the supervening act. On the other hand, if the intervening

cause were foreseeable, which is a question of fact for the

trier to decide, then the original negligent party may be held

liable. Id. In circumstances involving a foreseeable

intervening caus e, the original tortfeasor sometimes is said

to have "set in motion" the "chain of events" that resulted in

the plaintiff's injury. See Gibson v. Avis Rent - a - Car System,

Inc. , 386 So. 2d 520, 522 (Fla. 1980).

The undersigned rejects USF's argument that D r. Pollack's

negligence constituted a supervening act that relieved USF

of liability for Dr. Kousseff's negligence. Although Dr.

Pollack's negligence occurred after Dr. Kousseff's initial

failure to diagnose Aiden with SLO, it took place before Dr.

Kousse ff gave the Estradas the green light to have another

child. Had Dr. Kousseff not given the Estradas the bad

advice regarding the risk of recurrence, Dr. Pollack's

negligence would have caused no harm, for the Estradas

were not going to have another child absent assurance that

they could do so without incident. At most, Dr. Pollack's

negligence combined with that of Dr. Kousseff to cause a

single injury, namely the "wrongful birth" of Caleb. This is

how the case was presented Ï correctly, in the undersigned 's

view Ï to the jury, whose apportionment of the fault was

reasonable and has been accepted herein as a finding of

fact.

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The Estradas offered sufficient evidence to prove the

elements of damages available under Kush , both economic

and noneconomic. The tr ial court, in entering the final

judgment, appropriately reduced the damages by 10

percent, according to comparative fault principles, to relieve

USF of any liability for Dr. Pollack's negligence. The

undersigned concludes that the damages awarded in the

final judgment are supported both by the evidence presented

and the governing law.

LEGISLATIVE HISTORY: This is the second year that this claim has been presented to

the Florida Legislature.

ATTORNEY ' S FEES: Section 768.28(8), Florida Statutes, provides that "[n] o

attorney may charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement." The Claimants' law firm, Searcy

Denney Scarola Barnhart & Shipley, P.A., has agreed to limit

its fees to 25 percent of the recovery.

The Claimants' attorneys represent that they have incurred

approximately $2 15 ,000 in litigation costs. They state that

the net proceeds to be distributed to the Estradas "will be

reduced by " these costs. As written, how ever, the claim bil l

would not permit this because it provides that the "total

amount paid for attorney's fees, lobbying fees, costs, and

other similar expenses relating to the adoption of this act

may not exceed 25 percent of the total amount awarded

unde r this act ." The attorney's fees alone (at 25 percent of

the recovery) would reach the cap.

Unless amended, therefore, the bill would not allow the

Claimants' attorneys to charge a fee of 25 percent of the

gross recovery and, in addition to that, be reimbursed for

costs out of the bill's proceeds . The undersigned does not

recommend that the bill be amended.

SPECIAL ISSUES: Noneconomic Damages

With regard to the noneconomic damages awarded to the

Estradas individually for mental anguish, section 766.118(2),

Florida Statutes, should be considered. This statute places

a limit of $500,000 per claimant on the noneconomic

damages recoverable in a medical malpractice case.

Section 766.118(7), however, provides that this cap is not

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applicable to action s governed by sovereign immunity law.

Presumably the rationale for excluding actions governed by

section 768.28, Florida Statutes, from the limitation on

noneconomic damages imposed under section 766.118 is

that the sovereign immunity cap of $100,000 per person is

lower than the $500,000 cap prescribed in section 766.118.

In enacting a claim bill, the legislature, of course, can reduce

an excess judgment in any way it sees fit. Because it would

seemingly be anomalous for a claimant to be allowed to

recov er more in noneconomic damages from a

governmental entity, via a claim bill, than otherwise would be

allowable in a suit against a private defendant, the

undersigned recommends that, if this claim bill is approved,

the Estradas' respective individual recov eries be reduced,

from $2.25 million apiece, to $500,000 per person. This

would reduce the excess judgment amount by $3.5 million.

Insurance

USF has a self - insurance program that might p rovide

coverage for this loss. The underlying coverage of up to $3

m illion per incident was provided by University of South

Florida Health Scie nces Center Insurance Company

(HSCIC ) pursuant to a policy that was not provided to the

Senate Special Master. In addition to the HSCIC policy,

there are two stand - alone excess poli ces, which are

reinsured through Lloyd's, providing additional layers of

coverage above $3 million, with limits of $5 million and $10

million, respectively. The excess policies, which were

admitted into evidence in this proceeding, are "follow form"

polici es, meaning that their terms and conditions mirror

t hose of the underlying policy. Thus, although USF did not

produce a copy of the primary policy, it is possible to

deduce, from the excess policies, the outlines of the

underlying coverage, if not all the details thereof.

The HSCIC coverage is limited to $200,000 per incident

when sovere ign immunity applies, as here. If a claim bill

were enacted and signed by the governor, however, then the

$3 mil lion limit would be activated. (The Claimants' attorneys

arg ue that this insurance also would cover prejudgment

interest, which is why they urge that nearly $4 million in

interest be add ed to the amount of the claim. Given that

section 768.28 (5) e xcludes punitive damages and

prejudgment interest from the liability that can attach to the

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state and its agencies for tort claims, an award for

prejudgment interest is probably inappropriate, if not

prohibited.) In theory, then, there is potentially available $18

million in liability insurance for this loss, excluding

pre judgment interest, as suming a claim bill is passed. The

Claimants' attorneys argue, moreover, that the entire

judgment ultimately would be covered because the insurers

acted in bad faith.

As filed, Senate Bill 18 provides as follows:

The sum of $24,823,212.92 shall be paid by

the University of South Florida, provided the

claim is paid exclusively, or at least to the

maximum extent possible, out of insurance

proceeds, including any bad faith claim that

may exist against Lloyds of London under state

law.

The Senate Special Master was not provided sufficient

information to make detailed findings or conclusions

regarding insurance coverage, and in any event such

determinations are beyond the scope of the Master's

delegated authority. On its face, moreover , although the

claim bill appears to minimize the possibility that public funds

would be used to pay the $25 million obligation it creates,

the bill does not preclude such from happening, and indeed

would require that the entire claim be paid out of publi c funds

if no insurance recovery ever materialized .

Consequently , the undersigned must recommend against

the enactment of this bill, not because the claim lacks merit,

but because if t his bill were to pass, a huge sum of public

money would be placed at risk, at a time when the state is

facing a multi - billion dollar budget shortfall.

RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate

Bill 18 (2011) be reported UNFAVORABLY.

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February 1, 2011

Page 13

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Dennis L. Jones

R. Philip Twogood , Secretary of the Senate

Counsel of Record