HB 1701 2003
1	A bill to be entitled
2	An act for the relief of Judge Joseph G. Donahey, Jr., and
3	Tena Donahey, his spouse; providing an appropriation to
4	compensate them for injuries received by Joseph G.
5	Donahey, Jr., and for damages sustained by Mr. and Mrs.
6	Donahey as a result of the medical treatment of Judge
7	Joseph G. Donahey, Jr., by employees of the State of
8	Florida; providing an effective date.
9
10	WHEREAS, Joseph G. Donahey, Jr., a circuit judge of the
11	State of Florida, has for years suffered a continually worsening
12	condition of the back which caused him significant pain and
13	suffering and was beginning to affect his ability to serve as a
14	circuit judge, and
15	WHEREAS, Joseph G. Donahey, Jr., consulted with his
16	personal physician and was referred by his personal physician to
17	a surgeon who was reputed to be skilled in orthopedic surgery,
18	and
19	WHEREAS, Joseph G. Donahey, Jr., consulted with the surgeon
20	and was advised that a surgical procedure could be performed on
21	his back which would probably significantly improve the
22	condition of his back, and
23	WHEREAS, Joseph G. Donahey, Jr., consented to surgery by
24	the surgeon, to be conducted at Tampa General Hospital in Tampa,
25	Florida, and
26	WHEREAS, unknown to Joseph G. Donahey, Jr., the surgeon who
27	was to perform such surgery was an employee of the Board of
28	Regents of the State of Florida, and
29	WHEREAS, the surgery was performed on January 11, 1999, at
30	Tampa General Hospital, and
31	WHEREAS, a series of events took place which together
32	resulted in Joseph G. Donahey, Jr.'s becoming totally blind
33	during the surgery. As is so often true, any individual event
34	may not have been determinative; however, in combination, the
35	result to Judge Donahey was blindness, and such blindness
36	occurred not through any fault on his part but, undoubtedly, as
37	a result of a series of events attributable to several employees
38	of the Board of Regents. Those events are summarized as follows:
39	(1) The spinal surgery performed on Judge Donahey's back
40	was a complicated and lengthy surgery.
41	(a) Complicated surgery exposes patients to longer bouts
42	of anesthesia, greater blood loss, and decreased blood pressure
43	and, therefore, increases the risk of decreased blood flow and
44	loss of vision due to ischemic optic neuropathy.
45	(b) Joseph G. Donahey, Jr., was advised that such surgery
46	would likely last approximately 4.5 hours.
47	(c) The surgery lasted for approximately 10 hours instead
48	of the estimated 4.5 hours. During this unexpectedly long time,
49	the surgeon who had been employed by Judge Donahey also
50	supervised or performed surgery on two other patients. The
51	supervising anesthesiologist overseeing anesthesia services
52	being performed on Joseph G. Donahey, Jr., likewise at the same
53	time supervised anesthesia services performed on the other two
54	patients.
55	(d) Unknown to Joseph G. Donahey, Jr., such surgery was
56	not performed solely by the surgeon who he thought would perform
57	the surgery but, in fact, was performed in part by a different
58	doctor who was only a resident physician who, as part of his
59	training procedure, was employed by the Board of Regents and
60	received training by observing and participating in surgery
61	conducted by the surgeon whom Judge Donahey expected to perform
62	the surgery and who was the resident physician's professor.
63	(e) Unknown to Joseph G. Donahey, Jr., the
64	anesthesiologist who was to provide anesthesia services was also
65	a resident student employed by the Board of Regents and, as
66	such, performed anesthesiology services on patients being
67	operated on by Joseph G. Donahey, Jr.'s surgeon and others while
68	under only partial supervision by a board-certified
69	anesthesiologist who was likewise the anesthetist's professor.
70	(2) The risk factors associated with this complicated and
71	lengthy surgery, as known to all of the physicians participating
72	in the surgery, were increased by a combination of factors. The
73	risks, which were not known by Judge Donahey nor conveyed to him
74	by his physicians, included the following:
75	(a) Hypotension anesthesia was employed for Joseph G.
76	Donahey, Jr.'s surgery.
77	(b) Hypotensive anesthesia is a technique employed during
78	spinal surgery in which blood pressure is kept artificially low
79	through the administration of medicine in order to achieve the
80	goal of minimal bleeding.
81	(c) As known to all of the physicians involved in Judge
82	Donahey's surgery, low blood pressure has an additive ischemic
83	effect on blood flow when combined with blood loss, ultimately
84	placing certain vital organs at risk for decreased blood flow.
85	The optic nerve, which stimulates vision through the brain, is
86	part of the organ of the eyes and, during spinal surgery, is at
87	risk for decreased blood flow.
88	(d) Hemoglobin drops with blood loss and, as such, is the
89	parameter monitored, together with systolic and diastolic blood
90	pressures, to ensure adequate blood flow to all parts of the
91	body during surgery, especially during utilization of the
92	practice of hypotensive anesthesia.
93	(e) Prone body positioning is known to exacerbate the
94	cumulative effects of low hemoglobin and low blood pressures,
95	and Judge Donahey's surgery was performed in the prone position.
96	(f) The resident who provided anesthesia services under
97	the partial supervision of a board-certified anesthesiologist
98	was educated and trained in the increasing cumulative risk of
99	visual loss in the face of low blood pressure blood loss
100	(reduced hemoglobin) and lengthy surgery and, further, knew that
101	increased risk of visual loss may occur due to ischemic optic
102	neuropathy when hemoglobin drops below 10.
103	(g) Testimony indicated that Judge Donahey's hemoglobin
104	was below 10 for about 4 hours.
105	(h) The resident who provided anesthesia services under
106	the partial supervision of a board-certified anesthesiologist
107	was educated and trained in these additive effects and,
108	furthermore, knew that increased risk of visual loss may occur
109	due to ischemic optic neuropathy when systolic blood pressure
110	drops below 100 mm. Hg.
111	(i) Judge Donahey's systolic blood pressure dropped below
112	100 mm. Hg during the same time period in which his hemoglobin
113	was below 10 and, further, Judge Donahey required and received
114	neo-synephrine in order to elevate his systolic blood pressure.
115	(j) The surgeons who performed Judge Donahey's spinal
116	surgery were never directly informed of the low hemoglobin or
117	low systolic blood pressure, since those symptoms were not
118	deemed a risk requiring the interruption of surgery.
119	(k) Despite the knowledge of the risks associated with
120	hypotensive anesthesia and complicated spinal surgery, the
121	physicians ultimately relied on and employed slightly differing
122	minimum standards for blood pressure and hemoglobin, thereby
123	creating confusion in the context of this specific surgery, and
124	thus increased the overall risk under which Judge Donahey's
125	surgery was performed and, correspondingly, increased the
126	likelihood that ischemic optic neuropathy would occur.
127	(3) The physicians involved in Judge Donahey's surgery all
128	acknowledged that the occurrence of blindness arising from
129	decreased blood flow to the optic nerve, or ischemic optic
130	neuropathy, had increased in the last 5 years preceding Judge
131	Donahey's surgery.
132	(4) Vision problems related to surgery had been reported
133	approximately 120 times in medical literature for this surgery
134	and, on three previous patients, the particular surgeon involved
135	had performed surgery that resulted in unilateral vision loss. A
136	significant portion of these cases involved patients who were in
137	the prone position during lengthy surgery. This problem had been
138	discussed by the surgeon involved, his resident students, and
139	staff and had been discussed at national meetings. Both the
140	literature and the discussions reflected that a significant
141	causative effect was reduced blood pressure and lowered
142	hemoglobin, which would cause damage to the optic nerve.
143	(5) The surgeons who performed Judge Donahey's surgery
144	acknowledged the option of performing the surgery in two stages,
145	first to one level of the spine and then in a second stage to
146	the second level; however, Judge Donahey was never informed of
147	the cumulative risks as described above which were exacerbated
148	by the length of his surgery nor of the option of having his
149	surgery performed in two stages. If Judge Donahey had been
150	informed of all the risks and of the option of staged surgery,
151	he would not be blind today, and
152	WHEREAS, in accordance with the Florida Medical Malpractice
153	Act, Joseph G. Donahey, Jr., joined by his wife, Tena Donahey,
154	filed a notice of intent to commence litigation and took
155	statements of the physicians and the anesthesiologists involved
156	and supported their notice of intent to commence litigation with
157	the requisite affidavits required by law, and
158	WHEREAS, the Board of Regents of the State of Florida
159	denied liability as authorized by the Florida Medical
160	Malpractice Act, and
161	WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against
162	the Board of Regents of the State of Florida in the Thirteenth
163	Judicial Circuit of Hillsborough County, Florida, took discovery
164	depositions of the physicians involved, obtained the records
165	relating to the care and treatment involved, and fully complied
166	with all pretrial requirements of law, and
167	WHEREAS, the Board of Regents formally offered to settle
168	all claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena
169	Donahey, by the payment of $200,000, which represented the
170	maximum amount that the Board of Regents could be required to
171	pay Joseph G. Donahey, Jr., and Tena Donahey if they won their
172	lawsuit, absent the passage of a legislative claim bill; and the
173	penalty for not accepting that offer would be that Joseph G.
174	Donahey, Jr., and Tena Donahey would have to pay the attorney's
175	fees of the Board of Regents if they lost the litigation,
176	although there is no like provision that would allow the
177	Donaheys to recover more than the $200,000 without a claim bill,
178	no matter what occurred at the trial, and
179	WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey formally
180	accepted the proposed offer of settlement conditioned upon the
181	release being a standard release of a defendant from liability,
182	and
183	WHEREAS, the Board of Regents submitted for signature to
184	Joseph G. Donahey, Jr., and Tena Donahey a proposed release that
185	would have prevented them from seeking relief from the
186	Legislature, and
187	WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey refused
188	to sign a release containing such a limitation and, thereafter,
189	the Board of Regents tendered a release from which the
190	restriction from seeking legislative relief had been removed,
191	which release was executed to the Board of Regents of the State
192	of Florida and accepted by said board, and
193	WHEREAS, it was the intent of Joseph G. Donahey, Jr., and
194	Tena Donahey that the acceptance of the offer of settlement and
195	the giving and tendering of the release would have the effect of
196	removing financial responsibility from the University of South
197	Florida but would allow Joseph G. Donahey, Jr., and Tena Donahey
198	to make application to the Legislature for equitable relief
199	under the circumstances set forth in this act, and
200	WHEREAS, Joseph G. Donahey, Jr., has suffered significant
201	mental pain and suffering and loss of the enjoyment of his life
202	by reason of his blindness and has continued to serve as a
203	circuit judge with great difficulty, and, upon his retirement
204	from the bench, his earning capacity either as a teacher or as a
205	lawyer will be significantly and adversely affected by his
206	blindness, and
207	WHEREAS, Joseph G. Donahey, Jr., has incurred economic
208	expenses in his attempt to seek relief from his blindness not
209	compensated by insurance, and
210	WHEREAS, Tena Donahey has suffered an economic loss by
211	reason of her husband's injuries by her need to assist him in
212	his daily life and has also suffered a significant loss of
213	consortium, NOW, THEREFORE,
214
215	Be It Enacted by the Legislature of the State of Florida:
216
217	Section 1. The facts stated in the preamble to this act
218	are found and declared to be true.
219	Section 2. There is appropriated from the General Revenue
220	Fund the sum of $1 million for the relief of Joseph G. Donahey,
221	Jr., as compensation for damages sustained.
222	Section 3. The Chief Financial Officer is directed to draw
223	a warrant in favor of Joseph G. Donahey, Jr., in the sum of $1
224	million upon funds in the State Treasury, and the State
225	Treasurer is directed to pay the same out of such funds in the
226	State Treasury.
227	Section 4. The sum of $500,000 is appropriated from the
228	General Revenue Fund for the relief of Tena Donahey, as
229	compensation for damages sustained.
230	Section 5. The Chief Financial Officer is directed to draw
231	a warrant in favor of Tena Donahey in the sum of $500,000 upon
232	funds in the State Treasury, and the State Treasurer is directed
233	to pay the same out of such funds in the State Treasury.
234	Section 6. This act shall take effect upon becoming a law.
235