HB 87

1	A bill to be entitled
2	An act for the relief of Joseph G. Donahey, Jr., and Tena
3	Donahey, his spouse; providing an appropriation to
4	compensate them for injuries sustained as a result of the
5	negligence of the University of South Florida; providing a
6	limitation on the payment of fees and costs; providing an
7	effective date.
8
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
83	Donahey's surgery. Hypotensive anesthesia is a technique
84	employed during spinal surgery in which blood pressure is kept
85	artificially low through the administration of medicine in order
86	to minimize 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,
320	NOW, THEREFORE,
321
322	Be It Enacted by the Legislature of the State of Florida:
323
324	Section 1.  The facts stated in the preamble to this act
325	are 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.

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