Bill Text: FL S0026 | 2010 | Regular Session | Introduced

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Bill Title: Relief/Joseph G. & Tena Donahey/USF

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2010-04-30 - Died in Committee on The Special Master on Claim Bills [S0026 Detail]

Download: Florida-2010-S0026-Introduced.html

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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. 
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 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, 
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 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.