Florida Senate - 2010                              (NP)    SB 26
       By Senator Fasano
       11-00123-10                                             201026__
    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 sustained as a result
    5         of the negligence of the University of South Florida;
    6         providing a limitation on the payment of fees and
    7         costs; providing an effective date.
    9         WHEREAS, Joseph G. Donahey, Jr., a former circuit judge of
   10  the State of Florida, has for years suffered a worsening
   11  condition of his back which caused him significant pain and
   12  suffering and affected his ability to serve as a circuit judge,
   13  and
   14         WHEREAS, Judge Donahey was referred by his personal
   15  physician to Dr. David Cahill, a neurosurgeon reputed to be
   16  skilled in orthopedic surgery, and
   17         WHEREAS, Judge Donahey was advised by Dr. Cahill that a
   18  surgical procedure could be performed which could significantly
   19  improve the condition of his back and that Dr. Cahill was the
   20  neurosurgeon responsible for developing that procedure, and
   21         WHEREAS, unknown to Judge Donahey, Dr. Cahill was on the
   22  faculty of the University of South Florida College of Medicine
   23  and employed by the Board of Regents of the State of Florida,
   24  and
   25         WHEREAS, although Dr. Cahill was on the faculty of the
   26  University of South Florida College of Medicine, a significant
   27  portion of his income was earned through an entity known as the
   28  University of South Florida Physicians Group, which claims the
   29  benefits of the state’s sovereign immunity. The group provides
   30  multispecialty medical services, collects insurance proceeds and
   31  private payments for such services, and distributes a portion of
   32  these funds as income to providing physicians and health
   33  practitioners who are employees of the University of South
   34  Florida, and
   35         WHEREAS, Judge Donahey consented to surgery by Dr. Cahill,
   36  to be conducted at Tampa General Hospital, where the surgery was
   37  performed on January 11, 1999, and
   38         WHEREAS, a series of events took place during the surgery
   39  which resulted in Judge Donahey becoming totally blind, with
   40  those events summarized as follows:
   41         (1) Judge Donahey’s surgery was scheduled to begin at 7:30
   42  a.m. and last 4 hours.
   43         (2) The spinal surgery performed on Judge Donahey’s back
   44  was a complicated and lengthy surgery.
   45         (a) Complicated surgery exposes patients to longer periods
   46  of time under anesthesia, greater blood loss, and decreased
   47  blood pressure and, therefore, increases the risk of decreased
   48  blood flow and loss of vision due to ischemic optic neuropathy.
   49         (b) Unknown to Judge Donahey, the surgery was performed in
   50  part by a resident physician who, as part of his training, was
   51  employed by the Board of Regents and received training by
   52  observing and participating in surgery conducted by Dr. Cahill,
   53  who was the resident physician’s professor.
   54         (c) During the same time that surgery was being performed
   55  on Judge Donahey, and unknown to Judge Donahey, Dr. Cahill
   56  supervised three other surgeries. The University of South
   57  Florida records reflect that Dr. Cahill was scheduled to begin
   58  another surgery at 7:30 a.m., which was scheduled to last 6
   59  hours. Both this surgery and Judge Donahey’s surgery were to be
   60  followed by a second, shorter surgery in the same operating
   61  room. All four procedures were elective and not emergency
   62  surgeries. However, the scheduled 6-hour surgery lasted 7 hours
   63  and 5 minutes, followed in the same operating room by the two
   64  short surgeries. For unknown reasons, Judge Donahey’s surgery
   65  lasted 10 hours and 15 minutes. Each time Dr. Cahill went back
   66  and forth between operating rooms, he was required to do a
   67  complete scrub and re-gown, thus contributing to the length of
   68  each surgery.
   69         (d) Unknown to Judge Donahey, the anesthesiologist who
   70  provided anesthesia services was also a resident student
   71  employed by the Board of Regents and, as such, performed
   72  anesthesiology services for patients being operated on by Dr.
   73  Cahill and others while under only partial supervision by a
   74  board-certified anesthesiologist who was the anesthetist’s
   75  professor. The supervising anesthesiologist was simultaneously
   76  supervising the anesthesia services of the other patients.
   77         (3) The risks associated with this complicated and lengthy
   78  surgery, as known to all of the physicians participating in the
   79  surgery, were increased by a combination of factors. The
   80  following risks were not known by Judge Donahey and were not
   81  conveyed to him by the physicians:
   82         (a) Hypotensive anesthesia was employed for Judge Donahey’s
   83  surgery. Hypotensive anesthesia is a technique employed during
   84  spinal surgery in which blood pressure is kept artificially low
   85  through the administration of medicine in order to minimize
   86  bleeding.
   87         (b) Low blood pressure has an additive ischemic effect on
   88  blood flow when combined with blood loss, placing certain vital
   89  organs at risk for decreased blood flow. The optic nerve, which
   90  stimulates vision through the brain, is part of the organ of the
   91  eyes and, during spinal surgery, is at risk for decreased blood
   92  flow.
   93         (c) Hemoglobin drops with blood loss and, as such, is the
   94  parameter monitored, together with systolic and diastolic blood
   95  pressures, to ensure adequate blood flow to all parts of the
   96  body during surgery, especially during the practice of
   97  hypotensive anesthesia.
   98         (d) Prone body positioning is known to exacerbate the
   99  cumulative effects of low hemoglobin and low blood pressures,
  100  and Judge Donahey’s surgery was performed in the prone position.
  101         (e) The resident who provided anesthesia services was
  102  educated and trained in the increasing cumulative risk of vision
  103  loss due to low blood pressure, blood loss, and lengthy surgery
  104  and knew that a patient was at increased risk of loss of vision
  105  due to ischemic optic neuropathy when hemoglobin drops below 10.
  106  Testimony indicated that Judge Donahey’s hemoglobin was below 10
  107  for about 4 hours.
  108         (f) The resident who provided anesthesia services was
  109  educated and trained in these additive effects and also knew
  110  that increased risk of vision loss may occur due to ischemic
  111  optic neuropathy when systolic blood pressure drops below 100 mm
  112  Hg. Judge Donahey’s systolic blood pressure dropped below 100 mm
  113  Hg during the same period in which his hemoglobin was below 10,
  114  and, further, Judge Donahey required and received neo-synephrine
  115  in order to elevate his systolic blood pressure.
  116         (g) 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 deemed
  119  a risk requiring the interruption of surgery.
  120         (h) 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 the surgery, thus
  125  increasing the overall risk to Judge Donahey, and
  126  correspondingly increased the likelihood that ischemic optic
  127  neuropathy would occur.
  128         (i) The physicians involved in Judge Donahey’s surgery
  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         (j) Vision problems related to surgery had been reported
  134  about 120 times in medical literature for this surgery and Dr.
  135  Cahill had performed surgery on three previous patients which
  136  resulted in unilateral vision loss. A significant portion of
  137  these cases involved patients who were in the prone position
  138  during lengthy surgery. This problem had been discussed by Dr.
  139  Cahill, his resident students, and staff and had been discussed
  140  at national meetings. Both the literature and the discussions
  141  reflected that a significant causative effect was reduced blood
  142  pressure and lowered hemoglobin, which would cause damage to the
  143  optic nerve.
  144         (4) The surgeons who performed Judge Donahey’s surgery
  145  acknowledged the option of performing the surgery in two stages
  146  on different days, thereby limiting anesthesia time in each
  147  procedure. Judge Donahey was never informed of the cumulative
  148  risks that were exacerbated by the length of his surgery and was
  149  not informed of the option of having his surgery performed in
  150  two stages. If Judge Donahey had been informed of all the risks
  151  and of the option of staged surgery, he may have elected the
  152  staged surgery, thus avoiding the lengthy anesthesia, and would
  153  not be blind today, and
  154         WHEREAS, all of the advice and consultation between Judge
  155  Donahey, Judge Donahey’s wife, and Dr. Cahill was conducted in a
  156  manner that led Judge Donahey, with good cause, to believe that
  157  Dr. Cahill would perform his surgery or that it would be
  158  conducted by Dr. Cahill or his assistants under his direct and
  159  immediate supervision and in his presence. In fact, Dr. Cahill
  160  and the University of South Florida knew that a significant
  161  portion of the surgery would be performed by persons unknown to
  162  Judge Donahey, each of whom was significantly less qualified by
  163  training and experience than Dr. Cahill, and that significant
  164  portions of the surgery would be conducted during Dr. Cahill’s
  165  lengthy absences from the operating room, and
  166         WHEREAS, all communications to Judge Donahey from the staff
  167  of Tampa General Hospital and the staff of the University of
  168  South Florida reinforced and represented that it was Dr. Cahill,
  169  the well-known and renowned physician, who would be performing
  170  the surgery. Documents admitting the patient to Tampa General
  171  Hospital reinforced Judge Donahey’s belief that his care and
  172  treatment would be under the direct control and supervision of
  173  Dr. Cahill by referencing only Dr. Cahill by name as the
  174  surgeon, and
  175         WHEREAS, it is the policy of the State of Florida to
  176  require physicians who are not insured for medical malpractice
  177  to notify their patients in clear, unequivocal language of the
  178  lack of insurance. However, the University of South Florida
  179  avoids informing potential patients that if one of its employees
  180  makes an error that results in devastating injury and damages,
  181  the patient may be limited to the recovery of $100,000 per claim
  182  or $200,000 per incident, regardless of the severity of the
  183  incident or injury, including death, unless the patient is able
  184  to have the Legislature order full payment pursuant to a claim
  185  bill, and
  186         WHEREAS, the records of the University of South Florida are
  187  such that it is impossible to determine who was or was not
  188  present at any time during the surgery, who performed any parts
  189  of the surgery, or the length and number of times when nothing
  190  was taking place because of the absence of a specific surgeon to
  191  do a specific procedure. The university has provided no
  192  explanation of what went wrong. To the extent that any
  193  investigation was conducted by the university, such information
  194  has not been submitted for review. Even after repeated requests,
  195  the university has failed or refused to explain the delay to
  196  Judge Donahey. As a result, it is impossible to determine with
  197  any degree of accuracy who performed what parts of the surgery
  198  during the four surgeries, or why a surgery scheduled to last 4
  199  hours lasted more than 10 hours, and
  200         WHEREAS, although Dr. Cahill’s dictation of what occurred
  201  in the operating room during Judge Donahey’s surgery was
  202  supposed to occur during the surgery, the dictation was
  203  completed one-half hour before the surgery was finished. In
  204  addition, the report was dictated as if describing a personally
  205  observed event. However, much of the surgery was conducted by
  206  others in Dr. Cahill’s absence and without his direct
  207  supervision. No operative record was maintained by the other two
  208  surgeons who were present during Dr. Cahill’s absence, and
  209         WHEREAS, in sworn testimony Dr. Cahill admits that he
  210  doesn’t remember what happened and that he cannot recall what
  211  parts of the procedure he performed, when he was absent, when he
  212  was present, or anything about what happened in his absence. In
  213  statements taken under oath, Dr. Cahill could not explain how he
  214  happened to be covering three other surgeries while Judge
  215  Donahey was under prolonged anesthesia. Dr. Cahill testified
  216  that it was his policy that although he might supervise more
  217  than one surgery at a time, this would be done only in
  218  circumstances in which one serious surgery was performed at the
  219  same time as minor surgery of short duration, and
  220         WHEREAS, in accordance with s. 766.106, Florida Statutes,
  221  Joseph G. Donahey, Jr., joined by his wife, Tena Donahey, filed
  222  a notice of intent to commence litigation, took statements of
  223  the physicians and the anesthesiologists involved, and supported
  224  their notice of intent to commence litigation with the requisite
  225  affidavits required by law, and
  226         WHEREAS, the Board of Regents of the State of Florida
  227  denied liability as authorized by s. 766.106, Florida Statutes,
  228  and
  229         WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against
  230  the Board of Regents of the State of Florida in the Thirteenth
  231  Judicial Circuit of Hillsborough County, Florida, and took
  232  discovery depositions of the physicians involved, obtained the
  233  records relating to the care and treatment involved, and fully
  234  complied with all pretrial requirements of law, and
  235         WHEREAS, the Board of Regents formally offered to settle
  236  all claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena
  237  Donahey, by the payment of $200,000, which, pursuant to s.
  238  768.28, Florida Statutes, represented the maximum amount that
  239  the Board of Regents could be required to pay Joseph G. Donahey,
  240  Jr., and Tena Donahey if they won their lawsuit, absent the
  241  passage of a legislative claim bill. The penalty for not
  242  accepting that offer would be that Joseph G. Donahey, Jr., and
  243  Tena Donahey would have to pay the attorney’s fees of the Board
  244  of Regents if they lost the litigation, and
  245         WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey formally
  246  accepted the proposed offer of settlement conditioned upon the
  247  release being a standard release of a defendant from liability,
  248  and
  249         WHEREAS, the Board of Regents submitted for signature to
  250  Joseph and Tena Donahey a proposed release that would have
  251  prevented them from seeking relief from the Legislature, and
  252  Joseph and Tena Donahey refused to sign a release containing
  253  such a limitation, and
  254         WHEREAS, the Board of Regents subsequently tendered a
  255  release from which the restriction against seeking legislative
  256  relief had been removed, which release was executed to the Board
  257  of Regents of the State of Florida and accepted by the board,
  258  and
  259         WHEREAS, it was the intent of Joseph G. Donahey, Jr., and
  260  Tena Donahey that the acceptance of the offer of settlement and
  261  the giving and tendering of the release would have the effect of
  262  removing responsibility for the financial expense of trial from
  263  the University of South Florida and the plaintiff but would
  264  allow Joseph G. Donahey, Jr., and Tena Donahey to make
  265  application to the Legislature for equitable relief under the
  266  circumstances set forth in this act. This intent was based on
  267  the well-founded belief that the university used a portion of a
  268  patient’s deductible payments and payments from the patient’s
  269  insurer for medical treatment to fund a self-insurance fund
  270  established for the purpose of covering the cost of injuries to
  271  patients receiving negligent medical care from medical personnel
  272  employed by the university, and
  273         WHEREAS, the University of South Florida paid the sum of
  274  $100,000 each to Joseph G. Donahey, Jr., and Tena Donahey from
  275  the University of South Florida Health Sciences Center’s self
  276  insurance fund, which is the agent of the University of South
  277  Florida Health Science Center Insurance Company, Inc. The South
  278  Florida Health Science Center Insurance Company, Inc., is a
  279  Vermont corporation, formerly registered in Bermuda, created to
  280  provide compensation to patients injured due to the fault of
  281  employees of the university, including personnel providing
  282  medical treatment. The South Florida Health Science Center
  283  Insurance Company, Inc., is a wholly owned corporation of the
  284  University of South Florida. The corporation is not registered
  285  as an insurance company in Vermont or Florida, is registered as
  286  a for-profit corporation in the State of Vermont, and is not
  287  registered as doing business in the State of Florida even though
  288  all of its business is effectively related to the University of
  289  South Florida.
  290         (1) The self-insurance fund is funded from fees paid for
  291  medical treatment by patients and patients’ insurers and is
  292  administered by the university apart from the state budget.
  293         (2) The policy of the university is to never make payments
  294  from the fund of more than $100,000 per claimant unless required
  295  to do so by the Legislature pursuant to a claim bill.
  296         (3) The fund is also used to purchase reinsurance to
  297  reimburse amounts paid from the fund in excess of $1 million per
  298  incident, and
  299         WHEREAS, Joseph G. Donahey, Jr., has suffered significant
  300  mental pain and suffering and loss of the enjoyment of his life
  301  by reason of his blindness and continued to serve as a circuit
  302  judge with great difficulty, and, upon his retirement from the
  303  bench, has found that his earning capacity as a teacher or as a
  304  lawyer has been significantly and adversely affected by his
  305  blindness, and
  306         WHEREAS, in his attempt to seek relief from his blindness,
  307  Joseph G. Donahey, Jr., has incurred economic expenses that have
  308  not been compensated by insurance, and
  309         WHEREAS, by reason of her husband’s injuries, Tena Donahey
  310  has suffered an economic loss due to her need to assist him in
  311  his daily life and has also suffered a significant loss of
  312  consortium, and
  313         WHEREAS, the payment of an additional $3 million to Joseph
  314  G. Donahey, Jr., and Tena Donahey to compensate them for damages
  315  sustained will be in furtherance of the reason the self
  316  insurance fund was created and in furtherance of the insurance
  317  contract purchased by the fund, to wit: to pay full and just
  318  compensation to patients of the University of South Florida
  319  injured by reason of the fault of employees of the university,
  322  Be It Enacted by the Legislature of the State of Florida:
  324         Section 1. The facts stated in the preamble to this act are
  325  found and declared to be true.
  326         Section 2. The University of South Florida is directed to
  327  draw a warrant in favor of Joseph G. Donahey, Jr., in the sum of
  328  $2 million payable from the University of South Florida Health
  329  Sciences Center’s self-insurance fund or the University of South
  330  Florida Health Science Center Insurance Company, Inc., as
  331  appropriate.
  332         Section 3. The University of South Florida is directed to
  333  draw a warrant in favor of Tena Donahey in the sum of $1 million
  334  payable from the University of South Florida Health Sciences
  335  Center’s self-insurance fund or the University of South Florida
  336  Health Science Center Insurance Company, Inc., as appropriate.
  337         Section 4. The amount paid by the University of South
  338  Florida pursuant to s. 768.28, Florida Statutes, and the amount
  339  awarded under this act are intended to provide the sole
  340  compensation for all present and future claims arising out of
  341  the factual situation described in this act which resulted in
  342  the injuries and damages to Joseph G. Donahey, Jr., and Tena
  343  Donahey. The total amount paid for attorney’s fees, lobbying
  344  fees, costs, and other similar expenses relating to this claim
  345  may not exceed 25 percent of the total amount awarded under this
  346  act.
  347         Section 5. This act shall take effect upon becoming a law.