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A bill to be entitled

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An act relating to the relief of Judge Joseph G. Donahey,

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Jr., and Tena Donahey, his spouse; providing an

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appropriation to compensate them for injuries received by

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Joseph Donahey, Jr., and for damages sustained by Mr. and

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Mrs. Donahey as a result of the medical treatment of Judge

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Joseph G. Donahey, Jr., by employees of the State of

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Florida; providing a limitation on the payment of fees and

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costs; providing an effective date.

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

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State of Florida, has for years suffered a continually worsening

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condition of the back which caused him significant pain and

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suffering and was beginning to affect his ability to serve as a

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circuit judge, and

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

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physician and was referred by his personal physician to a surgeon

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who was reputed to be skilled in orthopedic surgery, and

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

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and was advised that a surgical procedure could be performed on

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his back which would probably significantly improve the condition

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of his back, and

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     WHEREAS, Joseph G. Donahey, Jr., consented to surgery by the

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surgeon, to be conducted at Tampa General Hospital in Tampa,

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Florida, and

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

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

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Regents of the State of Florida, and

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

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Tampa General Hospital, and

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     WHEREAS, a series of events took place which together

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

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

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not have been determinative; however, in combination, the result

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to Judge Donahey was blindness, and such blindness occurred not

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through any fault on his part but, undoubtedly, as a result of a

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series of events attributable to several employees of the Board

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of Regents. Those events are summarized as follows:

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

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was a complicated and lengthy surgery.

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     (a)  Complicated surgery exposes patients to longer bouts of

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anesthesia, greater blood loss, and decreased blood pressure and,

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therefore, increases the risk of decreased blood flow and loss of

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vision due to ischemic optic neuropathy.

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

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would likely last approximately 4 ½ hours.

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     (c)  The surgery lasted for approximately 10 hours instead

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of the estimated 4 ½ hours. During this unexpectedly long time,

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the surgeon who had been employed by Judge Donahey also

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supervised or performed surgery on two other patients. The

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supervising anesthesiologist overseeing anesthesia services being

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performed on Joseph G. Donahey, Jr., likewise at the same time

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supervised anesthesia services performed on the other two

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patients.

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     (d)  Unknown to Joseph G. Donahey, Jr., such surgery was not

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performed solely by the surgeon whom he thought would perform the

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surgery but, in fact, was performed in part by a different doctor

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who was only a resident physician who, as part of his training

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procedure, was employed by the Board of Regents and received

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training by observing and participating in surgery conducted by

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the surgeon who was expected by Judge Donahey to perform the

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surgery and who was the resident physician's professor.

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

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who was to provide anesthesia services was also a resident

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student employed by the Board of Regents and, as such, performed

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anesthesiology services on patients being operated on by Joseph

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Donahey's surgeon and others while under only partial supervision

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by a board-certified anesthesiologist who was likewise the

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anesthetist's professor.

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     (2)  The risk factors associated with this complicated and

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lengthy surgery, as known to all of the physicians participating

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in the surgery, were increased by a combination of factors. The

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risks, which were not known by Judge Donahey nor conveyed to him

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by his physicians, included:

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     (a)  Hypotension anesthesia was employed for Joseph G.

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Donahey, Jr.'s surgery.

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     (b)  Hypotensive anesthesia is a technique employed during

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spinal surgery in which blood pressure is kept artificially low

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through the administration of medicine in order to achieve the

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goal of minimal bleeding.

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

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Donahey's surgery, low blood pressure has an additive ischemic

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effect on blood flow when combined with blood loss, ultimately

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placing certain vital organs at risk for decreased blood flow.

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The optic nerve, which stimulates vision through the brain, is

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part of the organ of the eyes and, during spinal surgery, is at

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risk for decreased blood flow.

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

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parameter monitored, together with systolic and diastolic blood

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pressures, to ensure adequate blood flow to all parts of the body

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during surgery, especially during utilization of the practice of

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hypotensive anesthesia.

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     (e)  Prone body positioning is known to exacerbate the

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cumulative effects of low hemoglobin and low blood pressures, and

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Judge Donahey's surgery was performed in the prone position.

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     (f)  The resident who provided anesthesia services under the

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partial supervision of a board-certified anesthesiologist was

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educated and trained in the increasing cumulative risk of visual

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loss in the face of low blood pressure blood loss (reduced

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hemoglobin) and lengthy surgery and, further, knew that increased

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risk of visual loss may occur due to ischemic optic neuropathy

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when hemoglobin drops below 10.

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     (g)  Testimony indicated that Judge Donahey's hemoglobin was

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below 10 for about 4 hours.

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     (h)  The resident who provided anesthesia services under the

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partial supervision of a board-certified anesthesiologist was

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educated and trained in these additive effects and, furthermore,

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knew that increased risk of visual loss may occur due to ischemic

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optic neuropathy when systolic blood pressure drops below 100 mm.

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Hg.

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

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

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was below 10, and, further, Judge Donahey required and received

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neo-synephrine in order to elevate his systolic blood pressure.

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

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surgery were never directly informed of the low hemoglobin or low

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systolic blood pressure, since those symptoms were not deemed a

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risk requiring the interruption of surgery.

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     (k)  Despite the knowledge of the risks associated with

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hypotensive anesthesia and complicated spinal surgery, the

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physicians ultimately relied on and employed slightly differing

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minimum standards for blood pressure and hemoglobin, thereby

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creating confusion in the context of this specific surgery, and

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thus increased the overall risk under which Judge Donahey's

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surgery was performed and, correspondingly, increased the

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likelihood that ischemic optic neuropathy would occur.

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

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acknowledged that the occurrence of blindness arising from

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decreased blood flow to the optic nerve, or ischemic optic

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neuropathy, had increased in the 5 years immediately preceding

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Judge Donahey's surgery.

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     (4)  Vision problems related to surgery had been reported

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approximately 120 times in medical literature for this surgery

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and, on three previous patients, the particular surgeon involved

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had performed surgery that resulted in unilateral vision loss. A

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significant portion of these cases involved patients who were in

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the prone position during lengthy surgery. This problem had been

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discussed by the surgeon involved, his resident students, and

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staff and had been discussed at national meetings. Both the

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literature and the discussions reflected that a significant

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causative effect was reduced blood pressure and lowered

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hemoglobin, which would cause damage to the optic nerve.

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

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acknowledged the option of performing the surgery in two stages,

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first to one level of the spine and then in a second stage to the

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second level; however, Judge Donahey was never informed of the

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cumulative risks as described above which were exacerbated by the

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length of his surgery nor of the option of having his surgery

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performed in two stages. If Judge Donahey had been informed of

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all the risks and of the option of staged surgery, he would not

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be blind today, and

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     WHEREAS, in accordance with the Florida Medical Malpractice

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Act, Joseph G. Donahey, Jr., joined by his wife, Tena Donahey,

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filed a notice of intent to commence litigation and took

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statements of the physicians and the anesthesiologists involved

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and supported their notice of intent to commence litigation with

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the requisite affidavits required by law, and

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

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liability as authorized by the Florida Medical Malpractice Act,

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and

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     WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against the

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Board of Regents of the State of Florida in the Thirteenth

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Judicial Circuit of Hillsborough County, Florida, and took

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discovery depositions of the physicians involved and obtained the

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records relating to the care and treatment involved and fully

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complied with all pretrial requirements of law, and

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     WHEREAS, the Board of Regents formally offered to settle all

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claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena

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Donahey, by the payment of $200,000, which represented the

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maximum amount that the Board of Regents could be required to pay

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Joseph G. Donahey, Jr., and Tena Donahey if they won their

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lawsuit, absent the passage of a legislative claim bill; and the

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penalty for not accepting that offer would be that Joseph G.

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Donahey, Jr., and Tena Donahey would have to pay the attorney's

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fees of the Board of Regents if they lost the litigation,

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although there is no like provision that would allow the Donaheys

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to recover more than the $200,000 without a claim bill, no matter

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what occurred at the trial, and

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

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accepted the proposed offer of settlement conditioned upon the

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release being a standard release of a defendant from liability,

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and

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     WHEREAS, the Board of Regents submitted for signature to

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Joseph and Tena Donahey a proposed release that would have

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prevented them from seeking relief from the Legislature, and

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     WHEREAS, Joseph and Tena Donahey refused to sign a release

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containing such a limitation and, thereafter, the Board of

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Regents tendered a release from which the restriction from

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seeking legislative relief had been removed, which release was

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executed to the Board of Regents of the State of Florida and

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accepted by the board, and

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

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Tena Donahey that the acceptance of the offer of settlement and

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the giving and tendering of the release would have the effect of

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removing financial responsibility from the University of South

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Florida but would allow Joseph G. Donahey, Jr., and Tena Donahey

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to make application to the Legislature for equitable relief under

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the circumstances set forth in this act, and

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

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mental pain and suffering and loss of the enjoyment of his life

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by reason of his blindness and has continued to serve as a

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circuit judge with great difficulty, and, upon his retirement

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from the bench, his earning capacity either as a teacher or as a

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lawyer will be significantly and adversely affected by his

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blindness, and

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

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expenses in his attempt to seek relief from his blindness not

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compensated by insurance, and

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     WHEREAS, Tena Donahey has suffered an economic loss by

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

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daily life and has also suffered a significant loss of

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consortium, NOW, THEREFORE,

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

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     Section 1. The facts stated in the preamble to this act are

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found and declared to be true.

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     Section 2. (1) The sum of $1 million is appropriated from

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the Faculty Practice Plan Revenue affiliated at the University of

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South Florida Health Center for the relief of Joseph G. Donahey,

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Jr., for damages sustained.

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     (2) The Chief Financial Officer is directed to draw a

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warrant in favor of Joseph G. Donahey, Jr., in the sum of $1

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million upon funds in the Faculty Practice Plan Revenue

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affiliated at the University of South Florida Health Center and

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to pay the same out of such funds.

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     Section 3. (1) The sum of $500,000 is appropriated from

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the Faculty Practice Plan Revenue affiliated at the University of

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South Florida Health Center for the relief of Tena Donahey for

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damages sustained.

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     (2) The Chief Financial Officer is directed to draw a

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warrant in favor of Tena Donahey in the sum of $500,000 upon

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funds in the Faculty Practice Plan Revenue affiliated at the

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University of South Florida Health Center and to pay the same out

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of such funds.

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     Section 4. The amounts awarded in this act are intended to

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provide the sole compensation for all present and future claims

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arising out of the factual situation described in this act which

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resulted in injury to Judge Joseph G. Donahey, Jr. The total

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amount paid for attorney's fees, lobbying fees, costs, and other

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similar expenses relating to this claim may not exceed 25 percent

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of the total amount awarded under this act.

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     Section 5.  This act shall take effect upon becoming a law.