HB 115

1	A bill to be entitled
2	An act relating to the relief of Judge Joseph G. Donahey,
3	Jr., and Tena Donahey, his spouse; providing an
4	appropriation to compensate them for injuries received by
5	Joseph Donahey, Jr., and for damages sustained by Mr. and
6	Mrs. 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 periods
42	of anesthetization, greater blood loss, and decreased blood
43	pressure and, therefore, increases the risk of decreased blood
44	flow and 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-? hours.
47	(c)  The surgery lasted for approximately 10 hours instead
48	of the estimated 4-? 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 whom he thought would
57	perform the surgery but, in fact, was performed in part by a
58	different doctor who was only a resident physician who, as part
59	of his training procedure, was employed by the Board of Regents
60	and received training by observing and participating in surgery
61	conducted by the surgeon who was expected by Judge Donahey to
62	perform the surgery and who was the resident physician's
63	professor.
64	(e)  Unknown to Joseph G. Donahey, Jr., the
65	anesthesiologist who was to provide anesthesia services was also
66	a resident student employed by the Board of Regents and, as
67	such, performed anesthesiology services on patients being
68	operated on by Joseph Donahey's surgeon and others while under
69	only partial supervision by a board-certified anesthesiologist
70	who was likewise the anesthetist's professor.
71	(2)  The risk factors associated with this complicated and
72	lengthy surgery, as known to all of the physicians participating
73	in the surgery, were increased by a combination of factors. The
74	risks, which were not known by Judge Donahey nor conveyed to him
75	by his physicians, included:
76	(a)  Hypotension anesthesia was employed for Joseph G.
77	Donahey, Jr.'s surgery.
78	(b)  Hypotensive anesthesia is a technique employed during
79	spinal surgery in which blood pressure is kept artificially low
80	through the administration of medicine in order to achieve the
81	goal of minimal bleeding.
82	(c)  As known to all of the physicians involved in Judge
83	Donahey's surgery, low blood pressure has an additive ischemic
84	effect on blood flow when combined with blood loss, ultimately
85	placing certain vital organs at risk for decreased blood flow.
86	The optic nerve, which stimulates vision through the brain, is
87	part of the organ of the eyes and, during spinal surgery, is at
88	risk for decreased blood flow.
89	(d)  Hemoglobin drops with blood loss and, as such, is the
90	parameter monitored, together with systolic and diastolic blood
91	pressures, to ensure adequate blood flow to all parts of the
92	body during surgery, especially during utilization of the
93	practice of hypotensive anesthesia.
94	(e)  Prone body positioning is known to exacerbate the
95	cumulative effects of low hemoglobin and low blood pressures,
96	and Judge Donahey's surgery was performed in the prone position.
97	(f)  The resident who provided anesthesia services under
98	the partial supervision of a board-certified anesthesiologist
99	was educated and trained in the increasing cumulative risk of
100	visual loss in the face of low blood pressure blood loss
101	(reduced hemoglobin) and lengthy surgery and, further, knew that
102	increased risk of visual loss may occur due to ischemic optic
103	neuropathy when hemoglobin drops below 10.
104	(g)  Testimony indicated that Judge Donahey's hemoglobin
105	was below 10 for about 4 hours.
106	(h)  The resident who provided anesthesia services under
107	the partial supervision of a board-certified anesthesiologist
108	was educated and trained in these additive effects and,
109	furthermore, knew that increased risk of visual loss may occur
110	due to ischemic optic neuropathy when systolic blood pressure
111	drops below 100 mm. Hg.
112	(i)  Judge Donahey's systolic blood pressure dropped below
113	100 mm. Hg during the same time period in which his hemoglobin
114	was below 10, and, further, Judge Donahey required and received
115	neo-synephrine in order to elevate his systolic blood pressure.
116	(j)  The surgeons who performed Judge Donahey's spinal
117	surgery were never directly informed of the low hemoglobin or
118	low systolic blood pressure, since those symptoms were not
119	deemed a risk requiring the interruption of surgery.
120	(k)  Despite the knowledge of the risks associated with
121	hypotensive anesthesia and complicated spinal surgery, the
122	physicians ultimately relied on and employed slightly differing
123	minimum standards for blood pressure and hemoglobin, thereby
124	creating confusion in the context of this specific surgery, and
125	thus increased the overall risk under which Judge Donahey's
126	surgery was performed and, correspondingly, increased the
127	likelihood that ischemic optic neuropathy would occur.
128	(3)  The physicians involved in Judge Donahey's surgery all
129	acknowledged that the occurrence of blindness arising from
130	decreased blood flow to the optic nerve, or ischemic optic
131	neuropathy, had increased in the 5 years immediately preceding
132	Judge Donahey's surgery.
133	(4)  Vision problems related to surgery had been reported
134	approximately 120 times in medical literature for this surgery
135	and, on three previous patients, the particular surgeon involved
136	had performed surgery that resulted in unilateral vision loss. A
137	significant portion of these cases involved patients who were in
138	the prone position during lengthy surgery. This problem had been
139	discussed by the surgeon involved, his resident students, and
140	staff and had been discussed at national meetings. Both the
141	literature and the discussions reflected that a significant
142	causative effect was reduced blood pressure and lowered
143	hemoglobin, which would cause damage to the optic nerve.
144	(5)  The surgeons who performed Judge Donahey's surgery
145	acknowledged the option of performing the surgery in two stages,
146	first to one level of the spine and then in a second stage to
147	the second level; however, Judge Donahey was never informed of
148	the cumulative risks as described above which were exacerbated
149	by the length of his surgery nor of the option of having his
150	surgery performed in two stages. If Judge Donahey had been
151	informed of all the risks and of the option of staged surgery,
152	he would not be blind today, and
153	WHEREAS, in accordance with the Florida Medical Malpractice
154	Act, Joseph G. Donahey, Jr., joined by his wife, Tena Donahey,
155	filed a notice of intent to commence litigation and took
156	statements of the physicians and the anesthesiologists involved
157	and supported their notice of intent to commence litigation with
158	the requisite affidavits required by law, and
159	WHEREAS, the Board of Regents of the State of Florida
160	denied liability as authorized by the Florida Medical
161	Malpractice Act, and
162	WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against
163	the Board of Regents of the State of Florida in the Thirteenth
164	Judicial Circuit of Hillsborough County, Florida, and took
165	discovery depositions of the physicians involved and obtained
166	the records relating to the care and treatment involved and
167	fully complied with all pretrial requirements of law, and
168	WHEREAS, the Board of Regents formally offered to settle
169	all claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena
170	Donahey, by the payment of $200,000, which represented the
171	maximum amount that the Board of Regents could be required to
172	pay Joseph G. Donahey, Jr., and Tena Donahey if they won their
173	lawsuit, absent the passage of a legislative claim bill; and the
174	penalty for not accepting that offer would be that Joseph G.
175	Donahey, Jr., and Tena Donahey would have to pay the attorney's
176	fees of the Board of Regents if they lost the litigation,
177	although there is no like provision that would allow the
178	Donaheys to recover more than the $200,000 without a claim bill,
179	no matter what occurred at the trial, and
180	WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey formally
181	accepted the proposed offer of settlement conditioned upon the
182	release being a standard release of a defendant from liability,
183	and
184	WHEREAS, the Board of Regents submitted for signature to
185	Joseph and Tena Donahey a proposed release that would have
186	prevented them from seeking relief from the Legislature, and
187	WHEREAS, Joseph and Tena Donahey refused to sign a release
188	containing such a limitation and, thereafter, the Board of
189	Regents tendered a release from which the restriction from
190	seeking legislative relief had been removed, which release was
191	executed to the Board of Regents of the State of Florida and
192	accepted by the 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 Educational Aids
220	Trust Fund of the Department of Education the sum of $1 million
221	for the relief of Joseph G. Donahey, Jr., for injuries and
222	damages sustained.
223	Section 3.  The Chief Financial Officer is directed to draw
224	a warrant in favor of Joseph G. Donahey, Jr., in the sum of $1
225	million upon funds in the Educational Aids Trust Fund of the
226	Department of Education, and the Chief Financial Officer is
227	directed to pay the same out of such funds in the State
228	Treasury.
229	Section 4.  The sum of $500,000 is appropriated from the
230	Educational Aids Trust Fund of the Department of Education for
231	the relief of Tena Donahey for injuries and damages sustained.
232	Section 5.  The Chief Financial Officer is directed to draw
233	a warrant in favor of Tena Donahey in the sum of $500,000 upon
234	funds in the Educational Aids Trust Fund of the Department of
235	Education, and the Chief Financial Officer is directed to pay
236	the same out of such funds in the State Treasury.
237	Section 6.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.