Florida Senate - 2009                     (Reformatted)    SB 42
       
       
       
       By Senator Fasano
       
       
       
       
       11-00115A-09                                            200942__
    1                        A bill to be entitled                      
    2         An act for the relief of Joseph G. Donahey, Jr., and
    3         Tena Donahey, his spouse; providing an appropriation
    4         to compensate them for injuries received by Joseph
    5         Donahey, Jr., and for damages sustained by Mr. and
    6         Mrs. Donahey as a result of the medical treatment of
    7         Joseph G. Donahey, Jr., provided by employees of the
    8         University of South Florida; providing a limitation on
    9         the payment of fees and costs; providing an effective
   10         date.
   11  
   12         WHEREAS, Joseph G. Donahey, Jr., a former circuit judge of
   13  the State of Florida, has for years suffered a worsening
   14  condition of his back which caused him significant pain and
   15  suffering and affected his ability to serve as a circuit judge,
   16  and
   17         WHEREAS, Judge Donahey was referred by his personal
   18  physician to Dr. David Cahill, a neurosurgeon reputed to be
   19  skilled in orthopedic surgery, and
   20         WHEREAS, Judge Donahey was advised by Dr. Cahill that a
   21  surgical procedure could be performed which could significantly
   22  improve the condition of his back and that Dr. Cahill was the
   23  neurosurgeon responsible for developing that procedure, and
   24         WHEREAS, unknown to Judge Donahey, Dr. Cahill was on the
   25  faculty of the University of South Florida College of Medicine
   26  and employed by the Board of Regents of the State of Florida,
   27  and
   28         WHEREAS, Judge Donahey consented to surgery by Dr. Cahill,
   29  to be conducted at Tampa General Hospital in Tampa, Florida, and
   30         WHEREAS, the surgery was performed on January 11, 1999, at
   31  Tampa General Hospital, and
   32         WHEREAS, a series of events took place which resulted in
   33  Judge Donahey becoming totally blind during the surgery. Those
   34  events are summarized as follows:
   35         (1) The spinal surgery performed on Judge Donahey's back
   36  was a complicated and lengthy surgery.
   37         (a) Complicated surgery exposes patients to longer bouts of
   38  anesthesia, greater blood loss, and decreased blood pressure
   39  and, therefore, increases the risk of decreased blood flow and
   40  loss of vision due to ischemic optic neuropathy.
   41         (b) Unknown to Judge Donahey, the surgery was performed in
   42  part by a resident physician who, as part of his training, was
   43  employed by the Board of Regents and received training by
   44  observing and participating in surgery conducted by Dr. Cahill,
   45  who was the resident physician's professor.
   46         (c) During that time and unknown to Judge Donahey, Dr.
   47  Cahill supervised three other surgeries. The University of South
   48  Florida records reflect that another surgery for Dr. Cahill was
   49  scheduled to start at 7:30 a.m. and last 6 hours, with Judge
   50  Donahey's surgery scheduled to also start at 7:30 a.m. and last
   51  4 hours. Each surgery was to be followed by a short surgery in
   52  the respective operating room. All four procedures were elective
   53  and not emergency surgeries. However, the scheduled 6-hour
   54  surgery lasted 7 hours and 5 minutes, followed in the same
   55  operating room by the two short surgeries. For unknown reasons,
   56  Judge Donahey's surgery lasted 10 hours and 15 minutes. Each
   57  time Dr. Cahill went back and forth between operating rooms he
   58  was required to do a complete scrub and re-gown, thus
   59  contributing to the length of each surgery.
   60         (d) Unknown to Judge Donahey, the anesthesiologist who was
   61  to provide anesthesia services was also a resident student
   62  employed by the Board of Regents and, as such, performed
   63  anesthesiology services for patients being operated on by Dr.
   64  Cahill and others while under only partial supervision by a
   65  board-certified anesthesiologist who was the anesthetist's
   66  professor. The supervising anesthesiologist was, at the same
   67  time, supervising the anesthesia services on the other patients.
   68         (2) The risks associated with this complicated and lengthy
   69  surgery, as known to all of the physicians participating in the
   70  surgery, were increased by a combination of factors. The
   71  following risks were not known by Judge Donahey and were not
   72  conveyed to him by the physicians:
   73         (a) Hypotensive anesthesia was employed for Judge Donahey's
   74  surgery. Hypotensive anesthesia is a technique employed during
   75  spinal surgery in which blood pressure is kept artificially low
   76  through the administration of medicine in order to minimize
   77  bleeding.
   78         (b) Low blood pressure has an additive ischemic effect on
   79  blood flow when combined with blood loss, placing certain vital
   80  organs at risk for decreased blood flow. The optic nerve, which
   81  stimulates vision through the brain, is part of the organ of the
   82  eyes and, during spinal surgery, is at risk for decreased blood
   83  flow.
   84         (c) Hemoglobin drops with blood loss and, as such, is the
   85  parameter monitored, together with systolic and diastolic blood
   86  pressures, to ensure adequate blood flow to all parts of the
   87  body during surgery, especially during the practice of
   88  hypotensive anesthesia.
   89         (d) Prone body positioning is known to exacerbate the
   90  cumulative effects of low hemoglobin and low blood pressures,
   91  and Judge Donahey's surgery was performed in the prone position.
   92         (e) The resident who provided anesthesia services was
   93  educated and trained in the increasing cumulative risk of visual
   94  loss in the face of low blood pressure blood loss and lengthy
   95  surgery and knew that increased risk of visual loss may occur
   96  due to ischemic optic neuropathy when hemoglobin drops below 10.
   97  Testimony indicated that Judge Donahey's hemoglobin was below 10
   98  for about 4 hours.
   99         (f) The resident who provided anesthesia services was
  100  educated and trained in these additive effects and also knew
  101  that increased risk of visual loss may occur due to ischemic
  102  optic neuropathy when systolic blood pressure drops below 100 mm
  103  Hg. Judge Donahey's systolic blood pressure dropped below 100 mm
  104  Hg during the same period in which his hemoglobin was below 10,
  105  and further, Judge Donahey required and received neo-synephrine
  106  in order to elevate his systolic blood pressure.
  107         (g) The surgeons who performed Judge Donahey's spinal
  108  surgery were never directly informed of the low hemoglobin or
  109  low systolic blood pressure since those symptoms were not deemed
  110  a risk requiring the interruption of surgery.
  111         (h) Despite the knowledge of the risks associated with
  112  hypotensive anesthesia and complicated spinal surgery, the
  113  physicians ultimately relied on and employed slightly differing
  114  minimum standards for blood pressure and hemoglobin, thereby
  115  creating confusion in the context of the surgery, and thus
  116  increased the overall risk under which Judge Donahey's surgery
  117  was performed and, correspondingly, increased the likelihood
  118  that ischemic optic neuropathy would occur.
  119         (i) The physicians involved in Judge Donahey's surgery
  120  acknowledged that the occurrence of blindness arising from
  121  decreased blood flow to the optic nerve, or ischemic optic
  122  neuropathy, had increased in the 5 years immediately preceding
  123  Judge Donahey's surgery.
  124         (j) Vision problems related to surgery had been reported
  125  approximately 120 times in medical literature for this surgery
  126  and, on three previous patients, Dr. Cahill had performed
  127  surgery that resulted in unilateral vision loss. A significant
  128  portion of these cases involved patients who were in the prone
  129  position during lengthy surgery. This problem had been discussed
  130  by Dr. Cahill, his resident students, and staff and had been
  131  discussed at national meetings. Both the literature and the
  132  discussions reflected that a significant causative effect was
  133  reduced blood pressure and lowered hemoglobin, which would cause
  134  damage to the optic nerve.
  135         (3) The surgeons who performed Judge Donahey's surgery
  136  acknowledged the option of performing the surgery in two stages
  137  on different days, thereby limiting anesthesia time in each
  138  procedure. Judge Donahey was never informed of the cumulative
  139  risks that were exacerbated by the length of his surgery and was
  140  not informed of the option of having his surgery performed in
  141  two stages. If Judge Donahey had been informed of all the risks
  142  and of the option of staged surgery, he would have avoided the
  143  lengthy anesthesia and would not be blind today, and
  144         WHEREAS, all of the advice and consultation between Judge
  145  Donahey, Judge Donahey's wife, and Dr. Cahill was conducted in a
  146  manner that led Judge Donahey, with good cause, to believe that
  147  Dr. Cahill would perform his surgery or that it would be
  148  conducted by Dr. Cahill or his assistants under his direct and
  149  immediate supervision and in his presence. In fact, Dr. Cahill
  150  and the University of South Florida knew that a significant
  151  portion of the surgery would be performed by persons unknown to
  152  Judge Donahey, each of whom was significantly less qualified by
  153  training and experience than Dr. Cahill, and that significant
  154  portions of the surgery would be conducted during lengthy
  155  absences of Dr. Cahill from the operating room, and
  156         WHEREAS, all communications to Judge Donahey from the staff
  157  of Tampa General Hospital and the staff of the University of
  158  South Florida reinforced and represented that it was Dr. Cahill,
  159  the well-known and renowned physician, who would be performing
  160  the surgery. Documents admitting the patient to Tampa General
  161  Hospital reinforced Judge Donahey's belief that his care and
  162  treatment would be under the direct control and supervision of
  163  Dr. Cahill by referencing only Dr. Cahill by name as the
  164  surgeon, and
  165         WHEREAS, the policy of the State of Florida is to require
  166  physicians who are not insured for medical malpractice to notify
  167  their patients in clear, unequivocal language of the lack of
  168  insurance, however, the University of South Florida avoids
  169  informing potential patients that if one of its employees makes
  170  an error that results in devastating injury and damages, the
  171  patient may be limited to the recovery of $100,000 per claim or
  172  $200,000 per incident, regardless of the severity of the
  173  incident or injury, including death, unless the patient is able
  174  to have the Legislature order full payment pursuant to a claim
  175  bill, and
  176         WHEREAS, the records of the University of South Florida are
  177  such that it is impossible to determine who was or was not
  178  present at any time during the surgery, who performed any parts
  179  of the surgery, or the length and number of times when nothing
  180  was taking place because of the absence of a specific surgeon to
  181  do a specific procedure. The university has provided no
  182  explanation of what went wrong. To the extent that any
  183  investigation was conducted by the university, such information
  184  has not been submitted for review. Even after repeated requests,
  185  the university has failed or refused to explain the delay to
  186  Judge Donahey. As a result, it is impossible to determine with
  187  any degree of accuracy who performed what parts of the surgery
  188  during the four surgeries involved, or why a surgery scheduled
  189  to last 4 hours lasted over 10 hours, and
  190         WHEREAS, although Dr. Cahill's dictation of what occurred
  191  in the operating room during Judge Donahey's surgery was
  192  supposed to occur during the surgery, the dictation was
  193  completed one-half hour before the surgery was finished. In
  194  addition, the report was dictated as if describing an event
  195  observed by the person doing the dictation. However, much of the
  196  surgery was conducted by others in Dr. Cahill's absence and
  197  without his direct supervision. No operative record was
  198  maintained by the other two surgeons who were present during Dr.
  199  Cahill's absence, and
  200         WHEREAS, in sworn testimony Dr. Cahill admits that he
  201  doesn't remember what happened and that he cannot recall what
  202  parts of the procedure he performed, when he was absent, when he
  203  was present, or anything about what happened in his absence. In
  204  statements taken under oath, Dr. Cahill could not explain how he
  205  happened to be covering three other surgeries while Judge
  206  Donahey was under prolonged anesthesia. Dr. Cahill testified
  207  that it was his policy that although he might supervise more
  208  than one surgery at a time, this would be done only in
  209  circumstance in which one serious surgery was performed at the
  210  same time as minor surgery of short duration, and
  211         WHEREAS, in accordance with s. 766.106, Florida Statutes,
  212  Joseph G. Donahey, Jr., joined by his wife, Tena Donahey, filed
  213  a notice of intent to commence litigation, took statements of
  214  the physicians and the anesthesiologists involved, and supported
  215  their notice of intent to commence litigation with the requisite
  216  affidavits required by law, and
  217         WHEREAS, the Board of Regents of the State of Florida
  218  denied liability as authorized by s. 766.106, Florida Statutes,
  219  and
  220         WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against
  221  the Board of Regents of the State of Florida in the Thirteenth
  222  Judicial Circuit of Hillsborough County, Florida, and took
  223  discovery depositions of the physicians involved, obtained the
  224  records relating to the care and treatment involved, and fully
  225  complied with all pretrial requirements of law, and
  226         WHEREAS, the Board of Regents formally offered to settle
  227  all claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena
  228  Donahey, by the payment of $200,000, which, pursuant to s.
  229  768.28, Florida Statutes, represented the maximum amount that
  230  the Board of Regents could be required to pay Joseph G. Donahey,
  231  Jr., and Tena Donahey if they won their lawsuit, absent the
  232  passage of a legislative claim bill, and the penalty for not
  233  accepting that offer would be that Joseph G. Donahey, Jr., and
  234  Tena Donahey would have to pay the attorney's fees of the Board
  235  of Regents if they lost the litigation, and
  236         WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey formally
  237  accepted the proposed offer of settlement conditioned upon the
  238  release being a standard release of a defendant from liability,
  239  and
  240         WHEREAS, the Board of Regents submitted for signature to
  241  Joseph and Tena Donahey a proposed release that would have
  242  prevented them from seeking relief from the Legislature, and
  243  Joseph and Tena Donahey refused to sign a release containing
  244  such a limitation, and
  245         WHEREAS, the Board of Regents subsequently tendered a
  246  release from which the restriction against seeking legislative
  247  relief had been removed, which release was executed to the Board
  248  of Regents of the State of Florida and accepted by the board,
  249  and
  250         WHEREAS, it was the intent of Joseph G. Donahey, Jr., and
  251  Tena Donahey that the acceptance of the offer of settlement and
  252  the giving and tendering of the release would have the effect of
  253  removing responsibility for the financial expense of trial from
  254  the University of South Florida and the plaintiff but would
  255  allow Joseph G. Donahey, Jr., and Tena Donahey to make
  256  application to the Legislature for equitable relief under the
  257  circumstances set forth in this act, and
  258         WHEREAS, the University of South Florida paid to Joseph G.
  259  Donahey, Jr., $100,000, and to Tena Donahey $100,000, from the
  260  University of South Florida Health Sciences Center's self
  261  insurance fund, which was created to provide compensation to
  262  patients injured due to the fault of employees of the
  263  university, including personnel providing medical treatment.
  264         (1) The self-insurance fund is funded from fees paid for
  265  medical treatment by patients and patients' insurers and is
  266  administered by the university apart from the state budget.
  267         (2) The policy of the university is to never make payments
  268  from the fund of more than $100,000 per claimant unless required
  269  to do so by the Legislature pursuant to a claim bill.
  270         (3) The fund is also used to purchases reinsurance to
  271  reimburse amounts paid from the fund in excess of $1 million per
  272  incident, and
  273         WHEREAS, the payment of an additional $1.5 million, of
  274  which $700,000 will be reimbursed by the fund's reinsurer
  275  resulting in a net loss of $800,000 from the University of South
  276  Florida Health Sciences Center's self-insurance fund, will be in
  277  furtherance of the reason the fund was created and in
  278  furtherance of the insurance contract purchased by the fund, to
  279  wit: to pay full and just compensation to patients of the
  280  University of South Florida injured by reason of the fault of
  281  employees of the university, and
  282         WHEREAS, Joseph G. Donahey, Jr., has suffered significant
  283  mental pain and suffering and loss of the enjoyment of his life
  284  by reason of his blindness and continued to serve as a circuit
  285  judge with great difficulty, and, upon his retirement from the
  286  bench, has found that his earning capacity as a teacher or as a
  287  lawyer has been significantly and adversely affected by his
  288  blindness, and
  289         WHEREAS, in his attempt to seek relief from his blindness,
  290  Joseph G. Donahey, Jr., has incurred economic expenses that have
  291  not been compensated by insurance, and
  292         WHEREAS, by reason of her husband's injuries, Tena Donahey
  293  has suffered an economic loss due to her need to assist him in
  294  his daily life and has also suffered a significant loss of
  295  consortium, NOW, THEREFORE,
  296  
  297  Be It Enacted by the Legislature of the State of Florida:
  298         
  299         Section 1. The facts stated in the preamble to this act are
  300  found and declared to be true.
  301         Section 2. (1) The sum of $1 million is appropriated from
  302  the University of South Florida Health Sciences Center's self
  303  insurance fund for the relief of Joseph G. Donahey, Jr., for
  304  damages sustained.
  305         (2) The Chief Financial Officer is directed to draw a
  306  warrant in favor of Joseph G. Donahey, Jr., in the sum of $1
  307  million from the University of South Florida Health Sciences
  308  Center's self-insurance fund and to pay the same out of such
  309  funds.
  310         Section 3. (1) The sum of $500,000 is appropriated from
  311  University of South Florida Health Sciences Center's self
  312  insurance fund for the relief of Tena Donahey for damages
  313  sustained.
  314         (2) The Chief Financial Officer is directed to draw a
  315  warrant in favor of Tena Donahey in the sum of $500,000 from the
  316  University of South Florida Health Sciences Center's self
  317  insurance fund and to pay the same out of such funds.
  318         Section 4. The amounts awarded in this act are intended to
  319  provide the sole compensation for all present and future claims
  320  arising out of the factual situation described in this act which
  321  resulted in injury to Joseph G. Donahey, Jr. The total amount
  322  paid for attorney's fees, lobbying fees, costs, and other
  323  similar expenses relating to this claim may not exceed 25
  324  percent of the total amount awarded under this act.
  325         Section 5. This act shall take effect upon becoming a law.