Wrongful Birth Case In Florida

Parents Seek Lobbyist's Help In 'Wrongful Birth' Case

By THOMAS W. KRAUSEand SAMARA SODOS The Tampa Tribune

Published: Jul 25, 2007

TAMPA - Despite a $23.5 million verdict for Daniel and Amara Estrada, their fight isn't over yet.

The day after a jury awarded the Estradas the hefty sum for lifetime care of their 2-year-old son and for their own pain and suffering, the couple were gearing up to take the case to the next step: the Florida Legislature.

The Estradas said they expect to hire a lobbyist to help argue their case before the state Senate and House of Representatives.

A jury determined Monday that the University of South Florida was 90 percent at fault for the "wrongful birth" of their child, Caleb, who has a genetic disorder and will require constant care for the rest of his life. The school, therefore, should pay the bulk of the $23.5 million, the jury determined.

USF, however, is a division of Florida's government. Under state law, the most the school has to pay for lawsuits is $200,000. Payment of a jury award higher than that would require an act of the Legislature.

"We are very excited that we, at least, are going in the right direction to help Caleb out," Daniel Estrada said Tuesday. "We have to take our case to the Legislature and hope that they are receptive and willing to hear our story."

The couple's lawyer, Chris Searcy, said a lobbyist would have to believe in the Estradas' cause. Chances are, a lobbyist would get paid only if the bill awarding the couple more money is passed.

"I don't think the Estradas can afford to pay for one out of their pocket," he said.

If the Legislature approves the payout, Searcy said, the money would come from the school's insurance.

"It won't cost the University of South Florida or the taxpayers a dime," he said. "You'd think it would be a simpler process."

The Legislature hears about 100 requests a year from plaintiffs who win cases against the state. A committee of legal experts hears evidence and compares the jury awards with similar cases. The committee makes a recommendation to legislators about the need to pay.

"If they really listen to our story, I think that they will be compelled to help," Amara Estrada said. "I hope we can get them to listen."

The Estradas' first son, Aiden, was born with severe birth defects including malformed genitals, a small head, a cleft palate and webbing between some toes. He will never be able to communicate. USF geneticist Boris Kousseff saw the child several times over 1 1/2 years but could not diagnose the disorder.

When the Estradas asked whether they would be safe conceiving a second child, Kousseff told them they would have the same chance of birth defects as any other couple.

Caleb was diagnosed with Smith-Lemli-Opitz syndrome within an hour of his birth.

Kousseff had seen the syndrome about 10 times and had written a paper about it. Had he diagnosed Aiden properly, he could have told the Estradas that they had a 25 percent chance of having a second child with the syndrome. Had they known, the Estradas said, they might have adopted rather than take the risk.

When Amara Estrada was pregnant with Caleb, a simple test could have found the disorder before he was born. If they knew Caleb would be born with the disorder, they said in their lawsuit, they would have terminated the pregnancy.

On Tuesday, the Estradas said they're fighting to help their son, who is likely to outlive them.

"We are doing this to help Caleb," Daniel Estrada said. "It's not that we don't love our child and wish he was never there. He is our son, and we will be with him until we can no longer live."

tampatrib.com