For 'wrongful birth,' $23.5M
A jury sides with a family over a USF geneticist's "rotten advice."
By COLLEEN JENKINS
Published July 24, 2007
TAMPA - From the moment their son was born, Amara and Daniel Estrada knew he would suffer. Baby Aiden had webbed toes, a cleft palate, low-set ears, a small head and genitals so tiny doctors had a tough time determining his gender.
The Estradas turned to the University of South Florida's chief geneticist for answers. Dr. Boris Kousseff couldn't pinpoint a specific diagnosis but told the couple their future pregnancies should produce healthy children.
On Nov. 18, 2004, Caleb Estrada came into the world with nearly the same birth defects as his brother. His devastated parents sued the doctor and university for his "wrongful birth."
On Monday, a jury awarded $23.5-million to the Estradas, who said they would have terminated the pregnancy or adopted if they had known of the risk for the genetic disorder's reoccurrence.
The Estradas are guaranteed only $200,000. Because USF is a government entity protected by sovereign immunity, the couple must ask the state Legislature to pass a claims bill granting them the remainder of the verdict.
"It's going to be a long road, but I'm glad this part is over," said a tearful Amara Estrada, 36.
Aiden and Caleb Estrada, now 5 and 2, are mentally retarded. They will never be able to care for themselves. They eat with a feeding tube and cannot speak. Aiden recently began walking short distances; experts are not sure if Caleb ever will.
They have Smith-Lemli-Opitz syndrome, a genetic disorder first diagnosed in 1964. The syndrome affects an estimated 1 in 20,000 to 60,000 newborns, who are unable to produce enough cholesterol for healthy development.
Within an hour of Caleb's birth, doctors at Shands Hospital in Gainesville diagnosed the syndrome in the baby and told the Estradas their older son likely suffered from the same thing.
But the diagnosis eluded Kousseff during the two years he treated Aiden.
The Estradas first visited Kousseff three days after Aiden's June 28, 2002, birth in Tampa. More visits followed in the coming months, none producing a firm diagnosis.
As head of the USF genetics department for 23 years, Kousseff had seen Smith-Lemli-Opitz in seven patients and written an abstract about the syndrome, attorneys said.
Still, he never hit upon the syndrome as the cause for Aiden's problems, a mistake an attorney for the university conceded during her closing argument on Monday.
Because of the oversight, Kousseff failed to warn the Estradas of the 25 percent risk that the syndrome would reoccur in another child.
"It was simple human error," said defense attorney Janice Merrill. "He wasn't cavalier in his treatment."
Based on what the Estradas' attorney called "rotten advice," the couple had a second child.
After two weeks of testimony ended Friday, Circuit Judge William Levens ruled that Kousseff's negligence resulted in Caleb's wrongful birth.
The university's attorney argued that Kousseff wasn't the only one to blame for the oversight. Dr. Lynda Pollack, a pediatrician and genetics specialist the Estradas visited once after moving to Orlando for Amara Estrada's new veterinarian job, also failed to diagnose Aiden.
Though she was not named in the lawsuit, jurors on Monday assigned Pollack 10 percent of the blame. They assigned the other 90 percent to Kousseff, who retired in October 2004.
Amara Estrada's job in Orlando proved to be too rigorous to manage Aiden's medical needs. She now has more flexible hours teaching at the University of Florida's veterinary school in Gainesville. Daniel Estrada, 38, works as an administrator at the medical school.
One of the couple's attorneys, Chris Searcy of West Palm Beach, estimated they have spent $53,000 so far caring for their son's needs. He asked jurors to award the Estradas about $47-million; the university suggested a verdict as low as $8-million.
Searcy said the case makes a strong argument for removing the damages cap for "unresponsive" government agencies. As things stand, his firm will seek a claims bill next session with full understanding that the process could take years.
The Estradas have not ruled out trying for a third child, he said. But finally aware of the risk for the genetic disorder and the pain it brings, the couple will end the pregnancy if the fetus tests positive.
Colleen Jenkins can be reached at cjenkins@sptimes.com or 813 226-3337.