Senate Bill sb0038

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38

    By Senator Jones





    13-105-05

  1                      A bill to be entitled

  2         An act  for the relief of Judge Joseph G.

  3         Donahey, Jr., and Tena Donahey, his spouse;

  4         providing an appropriation to compensate them

  5         for injuries received by Joseph Donahey, Jr.,

  6         and for damages sustained by Mr. and Mrs.

  7         Donahey as a result of the medical the

  8         treatment of Judge Joseph G. Donahey, Jr., by

  9         employees of the State of Florida; providing an

10         effective date.

11  

12         WHEREAS, Joseph G. Donahey, Jr., a circuit judge of the

13  State of Florida, has for years suffered a continually

14  worsening condition of the back which caused him significant

15  pain and suffering and was beginning to affect his ability to

16  serve as a circuit judge, and

17         WHEREAS, Joseph G. Donahey, Jr., consulted with his

18  personal physician and was referred by his personal physician

19  to a surgeon who was reputed to be skilled in orthopedic

20  surgery, and

21         WHEREAS, Joseph G. Donahey, Jr., consulted with the

22  surgeon and was advised that a surgical procedure could be

23  performed on his back which would probably significantly

24  improve the condition of his back, and

25         WHEREAS, Joseph G. Donahey, Jr., consented to surgery

26  by the surgeon, to be conducted at Tampa General Hospital in

27  Tampa, Florida, and

28         WHEREAS, unknown to Joseph G. Donahey, Jr., the surgeon

29  who was to perform such surgery was an employee of the Board

30  of Regents of the State of Florida, and

31  

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1         WHEREAS, the surgery was performed on January 11, 1999,

 2  at Tampa General Hospital, and

 3         WHEREAS, a series of events took place which together

 4  resulted in Joseph G. Donahey, Jr.'s becoming totally blind

 5  during the surgery. As is so often true, any individual event

 6  may not have been determinative; however, in combination, the

 7  result to Judge Donahey was blindness, and such blindness

 8  occurred not through any fault on his part but, undoubtedly,

 9  as a result of a series of events attributable to several

10  employees of the Board of Regents. Those events are summarized

11  as follows:

12         (1)  The spinal surgery performed on Judge Donahey's

13  back was a complicated and lengthy surgery.

14         (a)  Complicated surgery exposes patients to longer

15  bouts of anesthesia, greater blood loss, and decreased blood

16  pressure and, therefore, increases the risk of decreased blood

17  flow and loss of vision due to ischemic optic neuropathy.

18         (b)  Joseph G. Donahey, Jr., was advised that such

19  surgery would likely last approximately 4-1/2 hours.

20         (c)  The surgery lasted for approximately 10 hours

21  instead of the estimated 4-1/2 hours. During this unexpectedly

22  long time, the surgeon who had been employed by Judge Donahey

23  also supervised or performed surgery on two other patients.

24  The supervising anesthesiologist overseeing anesthesia

25  services being performed on Joseph G. Donahey, Jr., likewise

26  at the same time supervised anesthesia services performed on

27  the other two patients.

28         (d)  Unknown to Joseph G. Donahey, Jr., such surgery

29  was not performed solely by the surgeon who he thought would

30  perform the surgery but, in fact, was performed in part by a

31  different doctor who was only a resident physician who, as

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1  part of his training procedure, was employed by the Board of

 2  Regents and received training by observing and participating

 3  in surgery conducted by the surgeon who was expected by Judge

 4  Donahey to perform the surgery and who was the resident

 5  physician's professor.

 6         (e)  Unknown to Joseph G. Donahey, Jr., the

 7  anesthesiologist who was to provide anesthesia services was

 8  also a resident student employed by the Board of Regents and,

 9  as such, performed anesthesiology services on patients being

10  operated on by Joseph Donahey's surgeon and others while under

11  only partial supervision by a board-certified anesthesiologist

12  who was likewise the anesthetist's professor.

13         (2)  The risk factors associated with this complicated

14  and lengthy surgery, as known to all of the physicians

15  participating in the surgery, were increased by a combination

16  of factors. The risks, which were not known by Judge Donahey

17  nor conveyed to him by his physicians, included:

18         (a)  Hypotension anesthesia was employed for Joseph G.

19  Donahey, Jr.'s surgery.

20         (b)  Hypotensive anesthesia is a technique employed

21  during spinal surgery in which blood pressure is kept

22  artificially low through the administration of medicine in

23  order to achieve the goal of minimal bleeding.

24         (c)  As known to all of the physicians involved in

25  Judge Donahey's surgery, low blood pressure has an additive

26  ischemic effect on blood flow when combined with blood loss,

27  ultimately placing certain vital organs at risk for decreased

28  blood flow. The optic nerve, which stimulates vision through

29  the brain, is part of the organ of the eyes and, during spinal

30  surgery, is at risk for decreased blood flow.

31  

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1         (d)  Hemoglobin drops with blood loss and, as such, is

 2  the parameter monitored, together with systolic and diastolic

 3  blood pressures, to ensure adequate blood flow to all parts of

 4  the body during surgery, especially during utilization of the

 5  practice of hypotensive anesthesia.

 6         (e)  Prone body positioning is known to exacerbate the

 7  cumulative effects of low hemoglobin and low blood pressures,

 8  and Judge Donahey's surgery was performed in the prone

 9  position.

10         (f)  The resident who provided anesthesia services

11  under the partial supervision of a board-certified

12  anesthesiologist was educated and trained in the increasing

13  cumulative risk of visual loss in the face of low blood

14  pressure blood loss (reduced hemoglobin) and lengthy surgery

15  and, further, knew that increased risk of visual loss may

16  occur due to ischemic optic neuropathy when hemoglobin drops

17  below 10.

18         (g)  Testimony indicated that Judge Donahey's

19  hemoglobin was below 10 for about 4 hours.

20         (h)  The resident who provided anesthesia services

21  under the partial supervision of a board-certified

22  anesthesiologist was educated and trained in these additive

23  effects and, furthermore, knew that increased risk of visual

24  loss may occur due to ischemic optic neuropathy when systolic

25  blood pressure drops below 100 mm. Hg.

26         (i)  Judge Donahey's systolic blood pressure dropped

27  below 100 mm. Hg during the same time period in which his

28  hemoglobin was below 10, and, further, Judge Donahey required

29  and received neo-synephrine in order to elevate his systolic

30  blood pressure.

31  

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1         (j)  The surgeons who performed Judge Donahey's spinal

 2  surgery were never directly informed of the low hemoglobin or

 3  low systolic blood pressure, since those symptoms were not

 4  deemed a risk requiring the interruption of surgery.

 5         (k)  Despite the knowledge of the risks associated with

 6  hypotensive anesthesia and complicated spinal surgery, the

 7  physicians ultimately relied on and employed slightly

 8  differing minimum standards for blood pressure and hemoglobin,

 9  thereby creating confusion in the context of this specific

10  surgery, and thus increased the overall risk under which Judge

11  Donahey's surgery was performed and, correspondingly,

12  increased the likelihood that ischemic optic neuropathy would

13  occur.

14         (3)  The physicians involved in Judge Donahey's surgery

15  all acknowledged that the occurrence of blindness arising from

16  decreased blood flow to the optic nerve, or ischemic optic

17  neuropathy, had increased in the 5 years immediately preceding

18  Judge Donahey's surgery.

19         (4)  Vision problems related to surgery had been

20  reported approximately 120 times in medical literature for

21  this surgery and, on three previous patients, the particular

22  surgeon involved had performed surgery that resulted in

23  unilateral vision loss. A significant portion of these cases

24  involved patients who were in the prone position during

25  lengthy surgery. This problem had been discussed by the

26  surgeon involved, his resident students, and staff and had

27  been discussed at national meetings. Both the literature and

28  the discussions reflected that a significant causative effect

29  was reduced blood pressure and lowered hemoglobin, which would

30  cause damage to the optic nerve.

31  

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1         (5)  The surgeons who performed Judge Donahey's surgery

 2  acknowledged the option of performing the surgery in two

 3  stages, first to one level of the spine and then in a second

 4  stage to the second level; however, Judge Donahey was never

 5  informed of the cumulative risks as described above which were

 6  exacerbated by the length of his surgery nor of the option of

 7  having his surgery performed in two stages. If Judge Donahey

 8  had been informed of all the risks and of the option of staged

 9  surgery, he would not be blind today, and

10         WHEREAS, in accordance with the Florida Medical

11  Malpractice Act, Joseph G. Donahey, Jr., joined by his wife,

12  Tena Donahey, filed a notice of intent to commence litigation

13  and took statements of the physicians and the

14  anesthesiologists involved and supported their notice of

15  intent to commence litigation with the requisite affidavits

16  required by law, and

17         WHEREAS, the Board of Regents of the State of Florida

18  denied liability as authorized by the Florida Medical

19  Malpractice Act, and

20         WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit

21  against the Board of Regents of the State of Florida in the

22  Thirteenth Judicial Circuit of Hillsborough County, Florida,

23  and took discovery depositions of the physicians involved and

24  obtained the records relating to the care and treatment

25  involved and fully complied with all pretrial requirements of

26  law, and

27         WHEREAS, the Board of Regents formally offered to

28  settle all claims of the plaintiffs, Joseph G. Donahey, Jr.,

29  and Tena Donahey, by the payment of $200,000, which

30  represented the maximum amount that the Board of Regents could

31  be required to pay Joseph G. Donahey, Jr., and Tena Donahey if

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1  they won their lawsuit, absent the passage of a legislative

 2  claim bill; and the penalty for not accepting that offer would

 3  be that Joseph G. Donahey, Jr., and Tena Donahey would have to

 4  pay the attorney's fees of the Board of Regents if they lost

 5  the litigation, although there is no like provision that would

 6  allow the Donaheys to recover more than the $200,000 without a

 7  claim bill, no matter what occurred at the trial, and

 8         WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey

 9  formally accepted the proposed offer of settlement conditioned

10  upon the release being a standard release of a defendant from

11  liability, and

12         WHEREAS, the Board of Regents submitted for signature

13  to Joseph and Tena Donahey a proposed release that would have

14  prevented them from seeking relief from the Legislature, and

15         WHEREAS, Joseph and Tena Donahey refused to sign a

16  release containing such a limitation and, thereafter, the

17  Board of Regents tendered a release from which the restriction

18  from seeking legislative relief had been removed, which

19  release was executed to the Board of Regents of the State of

20  Florida and accepted by the board, and

21         WHEREAS, it was the intent of Joseph G. Donahey, Jr.,

22  and Tena Donahey that the acceptance of the offer of

23  settlement and the giving and tendering of the release would

24  have the effect of removing financial responsibility from the

25  University of South Florida but would allow Joseph G. Donahey,

26  Jr., and Tena Donahey to make application to the Legislature

27  for equitable relief under the circumstances set forth in this

28  act, and

29         WHEREAS, Joseph G. Donahey, Jr., has suffered

30  significant mental pain and suffering and loss of the

31  enjoyment of his life by reason of his blindness and has

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1  continued to serve as a circuit judge with great difficulty,

 2  and, upon his retirement from the bench, his earning capacity

 3  either as a teacher or as a lawyer will be significantly and

 4  adversely affected by his blindness, and

 5         WHEREAS, Joseph G. Donahey, Jr., has incurred economic

 6  expenses in his attempt to seek relief from his blindness not

 7  compensated by insurance, and

 8         WHEREAS, Tena Donahey has suffered an economic loss by

 9  reason of her husband's injuries by her need to assist him in

10  his daily life and has also suffered a significant loss of

11  consortium, NOW, THEREFORE,

12  

13  Be It Enacted by the Legislature of the State of Florida:

14  

15         Section 1.  The facts stated in the preamble to this

16  act are found and declared to be true.

17         Section 2.  There is appropriated from the General

18  Revenue Fund the sum of $1 million for the relief of Joseph G.

19  Donahey, Jr., for damages sustained.

20         Section 3.  The Chief Financial Officer is directed to

21  draw a warrant in favor of Joseph G. Donahey, Jr., in the sum

22  of $1 million upon funds in the State Treasury, and the State

23  Treasurer is directed to pay the same out of such funds.

24         Section 4.  The sum of $500,000 is appropriated from

25  the General Revenue Fund for the relief of Tena Donahey, for

26  damages sustained.

27         Section 5.  The Chief Financial Officer is directed to

28  draw a warrant in favor of Tena Donahey in the sum of $500,000

29  upon funds in the State Treasury, and the State Treasurer is

30  directed to pay the same out of such funds.

31  

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    Florida Senate - 2005        (Corrected Copy)  (NP)      SB 38
    13-105-05




 1         Section 6.  This act shall take effect upon becoming a

 2  law.

 3  

 4            *****************************************

 5                          SENATE SUMMARY

 6    Provides an appropriation to compensate Joseph G.
      Donahey, Jr., and his spouse, Tena Donahey, for injuries
 7    sustained by Joseph G. Donahey, Jr., and for damages
      sustained by Mr. and Mrs. Donahey as a result of the
 8    medical treatment of Judge Donahey by employees of the
      State of Florida.
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