Home :: Productliability :: USF, Physician Liable For Botched Diagnosis
USF, Physician Liable For Botched Diagnosis
By THOMAS W. KRAUSE The Tampa Tribune
Published: Jul 24, 2007
TAMPA - A University of South Florida doctor gave Daniel and Amara Estrada the green light to go ahead with a second pregnancy even though their first child has significant birth defects.
The doctor, however, did not give the Estradas all the facts.
A jury determined the Estradas deserve $23.5 million for lifetime care of their second child, born with the same genetic disorder as their first. The award includes payment for the pain and suffering caused by the doctor's misdiagnosis. Because USF is a government agency, the couple must petition the Legislature for the bulk of the money.
Had Boris Kousseff properly diagnosed Aiden Estrada with Smith-Lemli-Opitz syndrome, the parents would have known there was a 25 percent chance their second child would have the disorder. A simple test could have found the disorder before Caleb Estrada was born.
Had the Estradas known, they would have terminated the second pregnancy, the couple said in their lawsuit.
Because of the disorder, the children will never be able to communicate with their parents. They have birth defects including small heads, webbing of the toes and undescended testicles. The children can't eat on their own, although they might be able to someday after significant therapy. Both have feeding tubes.
The jury took 2 1/2 hours to come up with the $23.5 million figure. They found Kousseff and USF were 90 percent at fault and a doctor not named in the suit 10 percent at fault. USF is liable for about $21.1 million.
When the verdict was read, Daniel and Amara Estrada wept and embraced. They took turns thanking and hugging the children's grandparents and their lawyers.
"Be strong, and fight for your kids," Amara Estrada tearfully told reporters.
"It's always about the kids," Daniel Estrada said.
Before the "wrongful birth" case went to the jury, Circuit Judge William Levens decided the Estradas had presented enough evidence to prove that Kousseff acted negligently. So the jury only had to determine how much it would cost to care for 2-year-old Caleb for the rest of his life and how much his parents deserved in pain and suffering.
Experts consulted by the Estradas said the family deserved about $45 million. USF experts suggested $8.25 million.
Because USF is a government agency, the most it will have to pay would be $200,000 of the $21.1 million verdict. The Estradas must petition the Legislature to collect the remainder. The Estradas' lawyer said costs in the case have topped $200,000. Without the Legislature's help, the Estradas would see nothing.
"It is going to be a long road," Amara Estrada said. "I'm glad this part is over."
Doctor Wrote Paper On Affliction
Kousseff had seen Smith-Lemli-Opitz syndrome at least 10 times. He also had written a paper about the syndrome. Regardless, he failed to properly diagnose Aiden.
Months after Aiden's birth, the Estradas moved to Orlando and saw a second doctor, Lynda Pollack. Pollack ran tests trying to determine Aiden's disorder but came up with nothing. She recommended one more test that could have discovered Aiden's syndrome but did not advise Kousseff. The jury found Pollack 10 percent at fault.
The couple continued to see Kousseff. Although he still had no diagnosis for Aiden, he negligently advised the Estradas that the chances of a second child having birth defects were the same as any other couple's.
Caleb Estrada was diagnosed with the syndrome within an hour of birth.
Daniel Estrada said the trial took a toll on the family.
"Having to relive the events of the last several years has been a tremendous difficulty," he said.
USF lawyer Janice Merrill said she has not decided whether the school will appeal.
The next fight for the family could be in the Legislature.
The Estradas' attorney, Chris Searcy, said the Legislature has received criticism from people who say it is unfair that government agencies are not held accountable for negligence as private individuals and companies are.
Abortion Issue Problematic
State Sen. Victor Crist, R-Tampa, leads the committee that will determine whether the Estradas deserve more than the $200,000 cap.
Typically, Crist said, a group of legal experts will hear testimony and compare the jury award to similar cases. The legal experts will return to the legislative committee with a recommendation. The Legislature votes on about 100 such claims a year, Crist said.
This case might prove more difficult because of the abortion issue.
"In the 15 years I've been in the Legislature, I haven't seen that kind of issue," Crist said. "This has a potential moral question that could become a potential political issue. I don't know what the Legislature will do with that."
Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.
