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.