Posted on 07/24/2007 5:22:38 AM PDT by indcons
In what is being called a "wrongful birth" case, a jury awarded more than $21 million to a couple who claimed a doctor misdiagnosed a severe birth defect in their son, leading them to have a second child with similar problems.
But because the doctor works for the University of South Florida, the family will have to persuade the Legislature to award most of the money. State law limits negligence claims against government agencies at $200,000.
Daniel and Amara Estrada, whose two young sons aren't able to communicate and need constant care, sought at least enough money to care for the second child, 2-year-old Caleb.
"This is a severely impaired child who will need a great deal of care for the rest of his life," said Christian Searcy, one of the attorneys who tried the case. He called the award "conservative but fair."
The couple claimed that Dr. Boris Kousseff failed to diagnose their first son's genetic disorder, called Smith-Lemli-Opitz syndrome, which is the inability to correctly produce or synthesize cholesterol, after his 2002 birth.
Had the disorder been correctly diagnosed, a test would have indicated whether the couple's second child also was afflicted and they would have terminated the pregnancy, according to the lawsuit.
Instead, Kousseff, a specialist in genetic disorders, told them they should be able to have normal children in the future.
The jury decided Monday that Kousseff was 90 percent negligent and that an Orlando doctor not named in the lawsuit was 10 percent at fault.
A USF spokeswoman didn't immediately return a call seeking comment Monday.
Searcy said he would push state lawmakers to pass a bill awarding the Estradas money over the $200,000 cap.
"I believe that this case is so powerful and this tragedy was so preventable and is so poignant, that it is the kind of case that should rise above the fray and rise above party politics," Searcy said.
BS
“Our son is alive. You owe us big time.”
Malpractice is malpractice. So it goes.
“But because the doctor works for the University of South Florida, the family will have to persuade the Legislature to award most of the money.”
Ain’t gonna happen.
So put aside for a second that this is a wrongful birth case and the the University doctor should have informed the parents that due to their genetic mix their second child would inevitably have had birth defects requiring care costing at least $200,000 per year over a 50 year life. I am also taking as an assumption that conservatism has as a foundation principle of acceptance of personal responsibility rather than reliance on the state.
How is tort reform, i.e. putting caps on damages, in any manner conservative? The doctor and hospital are being absolved from the full acceptance of their responsibility. As a result, the care of the child, assuming the parents are not multi-millionaires, will fall to the state in the form of medicaid and social security. Why is it a good thing to create more state dependents?
It primarily benefits Big Business. Duh.
Right! Tort reform is NOT conservative in principle.
Seems to me the kid should be able to sue the parent for supplying him with faulty genes...
susie
“Isn’t this special? Mom and Dad get the big bucks and the taxpayers will still take care of their kids...”
Most parents can’t afford to care for children with severe birth defects so the taxpayer often ends up paying one way or another. The alternative is abortion or to let them die. Which do you prefer?
I prefer not making an ambulance chaser rich in the process. The $200,000 cap is an attempt by the citizens of Florida to prevent this from happening, if at all possible.
“I prefer not making an ambulance chaser rich in the process. The $200,000 cap is an attempt by the citizens of Florida to prevent this from happening, if at all possible.”
I can agree with this part. But the dilemma remains. Either Joe Citizen helps pay for the care of these kids is some form — taxes, higher medical rates, higher insurance rates — or they die. A small percentage of parents can earn enough for the care, but I’d guess it’ a very small percentage.
I should have made it clear, in this case, I do support the family being aided in caring for these children. They shouldn’t have had to fight for it.
And if they spend all that money, the cost of the care of those kids will STILL fall to the taxpayer, cause the money’s alllll gooonnne.
You'd think a genetic specialist would have diagnosed it correctly.
Instead, Kousseff, a specialist in genetic disorders, told them they should be able to have normal children in the future.
And he was right. People with the recessive trait have a 25% chance of having a child with this condition. That's a 75% chance of having a normal child. He didn't lie to them.
Instead of capping lawsuits, which I am not opposed to, they should cap lawyers fees. Blood sucking leeches.....
I would rather see state support for the severely disabled (an affirmation that despite their condition, their lives still have value) than rampant legal settlements.
In the case of a disabled child, *someone* is going to have to pay for the care. If these people ever see their $21 million, how much will the lawyer get? Who protects the child when the parents spend the money foolishly and suddenly don’t have the funds to provide medical care for the disabled child ten years from now?
My point is that the $21 million is NOT going to go to the care of the child. If human nature is any indicator, these people will be driving a brand new Mercedes within a year of receiving their money. If we want to see the child cared for, then we shouldn’t be throwing large sums of money at the parents. Either the state can be held liable for the child’s actual medical expenses or a trust can be set up to pay for them.
I believe tort reform is right because liberals and lawyers like to villify “big business.” They look upon business as a wellspring of settlement money. What they don’t get is that milking business for every cent they can get only hurts the little guys. When that company does it’s accounting and decides that it has to lay off 2,000 people, who wins then? Oh yeah, the lawyers and the idiot who spilled hot coffee in their lap.
In times like these I’m reminded of the family who was rear-ended by a drunk driver going 60 miles an hour. Their car subsequently exploded. In court, they were awarded *billions*. BILLIONS of dollars. Not from the drunk driver, mind you, but from the car company. You see, despite the fact that the gas tank MET OR EXCEEDED FEDERAL SAFETY GUIDELINES, the jury decided that the tank *could* have been built safer. WTF is that? If this family wanted a safer car, they should have bought a Volvo. Anything can be done better, but COST becomes a factor. Now companies are liable for meeting safety guidelines but NOT building a tank?
That’s where we need tort reform.
The libs are dancing around the issue of high health care cost, yet they won’t talk about the real reason it is so high.
aka.....money grubbing lawyers. Tort reform now!!
‘morning, Metmom. How are you? Good to see you online.
This court finds the doctor is not God.
Now, cough up the money.
actually wrongful birth is a good thing for pro-life forces.
additionally,
Why didn’t the AP mention the Florida Trust Fund set up by the legislature which forces all insurance companies to pay a portion of premiums into a trust fund to deal with such birth defects?
I am not for capping actual damages. Usually the discussion is about capping punitive damages that get awarded on top of actual compensatory damages. They can get to be outrageous.
I’d prefer letting the child die if the parents can’t afford the care. This is where they just need to hope they can find a charity to pitch in. Government should never act as a charity because we don’t have an option of not paying taxes. It may sound mean and evil, but no one has a right to all the medical care the world the world has to offer. It’s just too expensive.
Man, we want a guarantee on everything. Since when is a perfectly healthy child a guarantee?
Also, if you want to award damages, then for crying out loud, make the damages fit the offense. Award the CHILD enough money to be properly cared for the rest of its life. Make it part of the award that the money go into a trust for the CHILD’S CARE, so that the tax payers don’t get hit again when the parents spend all the money.
How is tort reform, i.e. putting caps on damages, in any manner conservative?...
Thank you for asking the question! The conservative movement is dead and morally bankrupt - no ideas, no enthusiasm, no nothin' - just pious, self-righteous indignation and high dudgeon.
Put your asbestos panties on...you're about to be called a neo-Stalinist or worse. There are, after all, certain questions you are simply not allowed to ask.
I can hear it now: "Those so-called parents CHOSE to be mis-diagnosed by their GOVERNMENT medical specialsist! And their children CHOSE to be afflicted! The whole family is nothing but a rat's nest of SOCIALIST SCAM artists picking the pockets of decent GOD-FEARING CHRISTIANS like us. I only hope JESUS will forgive them for their transparent WELFARE SCHEME!"
Off your meds?
“Why is it a good thing to create more state dependents?” When we should have just killed them when we could.....
"Should" doesn't mean 100% certainty. They rolled the dice and lost (in their eyes).
Yes, we do -- but not in the way most seem to want. You won't get it with caps or restrictions or any of the other ideas I've seen floated, but there are things we should do to mitigate the harms done.
Agree or disagree -- the proper place for Societies Funds (taxes) is with the depository mandated by that Society. We, the People have a constitutional government that restricts both collection and expenditure of those funds. I propose we further restrict both.
Good Luck trying to get any of that passed by our oligarchical lawyer-infested governments!
A few days ago, there was an article posted here about a physician recommending that a child he suspected would be born with birth defects be aborted. That physician was roundly criticized. Now you have heard the rest of the story.
A “genetic specialist” should have diagnosed the genetic condition to begin with. He made a mistake, and he should take responsibility. Doctors are going to make mistakes, because they are human. When they do, there are people that are going to suffer, sometimes tremendously. That is why most carry malpractice insurance. So, that the patients that are harmed from the mistake can be compensated.
I wouldn’t say 21 million is reasonable, but in my opinion, there should have been a large settlement in this case, to assist the parents in caring for the disabled child.
All parents roll the dice with each pregnancy. This is a far different situation
What a wonderful new tort we have out there.
Child: Thanks for having me.
Parents: We never wanted you.
My point is if these parents get 21 million dollars then the financial responsibility should fall on the parents and not the taxpayer. I would think 21 million would go a long way in helping their children.
Why didn't they adopt a second child instead of continuing to pass on this dreaded gene? (I don't mean to be cruel in any way because they undoubtedly have their hands full.)
There always have been and there always will be wards of the state. But as the prosperity of our society increases, doesn't it make good sense as a matter of to enlist private sources to fund care of the wards of the state? 150 years ago, the medical profession in the US was a bunch of quacks and snake oil salesmen. Now, it is the center ofa multi-billion dollar industry, which can spread the risk through insurance and other means, to cover the cost of preventable errors. With health care providers taking personal responsibility for their errors, a conservative approach, fewer poor souls are wards of the state or otherwise dependent on government. So why is it good to have the State care for severely disabled, rather than fund the care privately using a family member as a provider of love ans well as services?
As far as settlements being rampant, I can assure you, medical malpractice cases are the toughest out there. More of those cases are tried than any other.
Who protects the child when the parents spend the money foolishly and suddenly don’t have the funds to provide medical care for the disabled child ten years from now?
The parents do not get the majority of this money. They may be paid for their lost income, when they leave their job to care for their injured or sick child. In every case involving a monor, a guaridan ad litem is appointed to act in the best interest of the child and any settlement is held in trust. True, many parents act as guardian ad litem, but the parents do not have unfettered control of the settlement money. So a court of equity and the law of trusts are well developed agencies for the protection of these kind of settlements.
If these people ever see their $21 million, how much will the lawyer get?
This varies from state to state, but generally with a settlement this size, the lawyers will get less than 1/3. Alot of money? Sure. So don't pay it - but good luck convincing 6 or 12 ordinary people in a jury box without a "director" (Which is all a good lawyer really is these days) for the movie that is your case. Big producers and big directors make the best selling movies. Take them out of the game with some government law or regulation, and you're stuck with YouTube. How is that conservative?
But the contingent fee contract is a creature of the free market. So I guess that relationship should be regulated too. How is THAT conservative? It isn't - it is pure populism.
Oh yeah, the lawyers and the idiot who spilled hot coffee in their lap.
Uh buoy, not that one again. Coffee more than 120 degrees is not drinkable. An approximate one-second exposure to 160 degree F water will result in third degree burns. Water is 130 degree F, an approximate half-minute exposure will result in third degree burns. McDonalds marketing department required that the coffee in the caraf was 180 degrees. Yes - people do stupid things like spill their coffee. But how stupid is it to make the consequences of a stupid, but totally predictible mistake, result in third degree burns? McDolalds was stupid and deserved to pay. Any company which runs its business in such a stupid was should have to lay off their workers and close their doors so that room will be made for other less stupid business to serve that market.
despite the fact that the gas tank MET OR EXCEEDED FEDERAL SAFETY GUIDELINES, the jury decided that the tank *could* have been built safer. WTF is that?
I have been involved in cases just like this - people barely subsisting driving an old junker at the speed limit, waffled by a drunk driver. Everybody paid. The truth of the matter is the technology to prevent gas tank ruptures is 50 years old now. So the manufacturer paid big - and it should have - because a little 6 year old girl didn't need to get her burned and scarred for life.
As far as standards, you should look intio a little how standards are made. Quite often a manufacturer that hs sold a product that has caused some injuries conducts a rear guard action by lobbying for getting federal protection through a standard they basically write. How is that conservative? In lesser cases, manufacturers will band together an make an "industry standard" which tilts in their favor. This is a better solution because it does not have the force of law.
Please don't paint me with that brush. If you read my post, I asked for a discussion about a situation where the parents could have been educated before conception.
As a juror, it would be your perogative to simply nullify any recovery for such murder - but that is a different discussion.
60 years old at least.
See Post 37
It’s a sick parent who calls the birth of their own child ‘wrongful.’
What if they had done the test and the test said that they were going to have another sick baby? Then they “terminate” and find out after the abortion that it was a healthy baby after all. Would they have sued then?
I agree that, if there is real negligence or outright disregard, the person responsible should pay. But is that truly the case here, or did the jury just feel sorry for the family and give them a bunch of money? We can't answer that, of course, because we aren't privy to the evidence in this case. But juries have gotten out of hand in many cases, giving huge amounts of money for such things as being burned while holding a cup of hot coffee between the legs while driving. So, I do believe that there is a need for tort reform of some sort.
And in that respect, tort reform IS a conservative principle.
Well then - this brings me to the real point. Behind every bad verdict is bad thinking by a jury. This bad thinking is almost never conservative thinking. It is liberalism or populism applied by people made dizzy by the power that they will wield only once in their life. Why do you think that is?
In this case yes - that is the wrongful birth cause of action - as gruesome as it is.
Because liberals are think 'the man' (whoever they deem that to be) owes them (or whowever the current 'victim' is).
Coffee more than 130 degrees is not drinkable. An approximate one-second exposure to 160 degree F water will result in third degree burns. Water is 130 degree F, an approximate half-minute exposure will result in third degree burns. McDonalds marketing department required that the coffee in the caraf was 180 degrees. Yes - people do stupid things like spill their coffee. But how stupid is it to make the consequences of a stupid, but totally predictible mistake, result in third degree burns? Easy case to attack because the burn seems to be the fault of the drinker - but nobody expects instantaneous third degree burns from a stupid cup of coffee. So it was a good case against McDonalds, who rightly had to pay for the damages.
I guess they never heard of getting a “second opinion” or of the internet.
There are many diseasesthat are very similar and mimic each other. A “diagnosis” is not a money back garantee.
They should not have gone ahead and had another child unless absolutely certain it was not genetic, and that means doing your own homework and looking for second opinions. I speak from personal experience here.
And lastly, if taking care of the first child was going to be such an onerous and expensive task, why have a second?
Of course! But where are the conservatives on the jury to keep them in check?
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