January 18, 2021
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_h0087__
HB 87

1
A bill to be entitled
2An act for the relief of Joseph G. Donahey, Jr., and Tena
3Donahey, his spouse; providing an appropriation to
4compensate them for injuries sustained as a result of the
5negligence of the University of South Florida; providing a
6limitation on the payment of fees and costs; providing an
7effective date.
8
9     WHEREAS, Joseph G. Donahey, Jr., a former circuit judge of
10the State of Florida, has for years suffered a worsening
11condition of his back which caused him significant pain and
12suffering and affected his ability to serve as a circuit judge,
13and
14     WHEREAS, Judge Donahey was referred by his personal
15physician to Dr. David Cahill, a neurosurgeon reputed to be
16skilled in orthopedic surgery, and
17     WHEREAS, Judge Donahey was advised by Dr. Cahill that a
18surgical procedure could be performed which could significantly
19improve the condition of his back and that Dr. Cahill was the
20neurosurgeon responsible for developing that procedure, and
21     WHEREAS, unknown to Judge Donahey, Dr. Cahill was on the
22faculty of the University of South Florida College of Medicine
23and employed by the Board of Regents of the State of Florida,
24and
25     WHEREAS, although Dr. Cahill was on the faculty of the
26University of South Florida College of Medicine, a significant
27portion of his income was earned through an entity known as the
28University of South Florida Physicians Group, which claims the
29benefits of the state's sovereign immunity. The group provides
30multispecialty medical services, collects insurance proceeds and
31private payments for such services, and distributes a portion of
32these funds as income to providing physicians and health
33practitioners who are employees of the University of South
34Florida, and
35     WHEREAS, Judge Donahey consented to surgery by Dr. Cahill,
36to be conducted at Tampa General Hospital, where the surgery was
37performed on January 11, 1999, and
38     WHEREAS, a series of events took place during the surgery
39which resulted in Judge Donahey becoming totally blind, with
40those events summarized as follows:
41     (1)  Judge Donahey's surgery was scheduled to begin at 7:30
42a.m. and last 4 hours.
43     (2)  The spinal surgery performed on Judge Donahey's back
44was a complicated and lengthy surgery.
45     (a)  Complicated surgery exposes patients to longer periods
46of time under anesthesia, greater blood loss, and decreased
47blood pressure and, therefore, increases the risk of decreased
48blood flow and loss of vision due to ischemic optic neuropathy.
49     (b)  Unknown to Judge Donahey, the surgery was performed in
50part by a resident physician who, as part of his training, was
51employed by the Board of Regents and received training by
52observing and participating in surgery conducted by Dr. Cahill,
53who was the resident physician's professor.
54     (c)  During the same time that surgery was being performed
55on Judge Donahey, and unknown to Judge Donahey, Dr. Cahill
56supervised three other surgeries. The University of South
57Florida records reflect that Dr. Cahill was scheduled to begin
58another surgery at 7:30 a.m., which was scheduled to last 6
59hours. Both this surgery and Judge Donahey's surgery were to be
60followed by a second, shorter surgery in the same operating
61room. All four procedures were elective and not emergency
62surgeries. However, the scheduled 6-hour surgery lasted 7 hours
63and 5 minutes, followed in the same operating room by the two
64short surgeries. For unknown reasons, Judge Donahey's surgery
65lasted 10 hours and 15 minutes. Each time Dr. Cahill went back
66and forth between operating rooms, he was required to do a
67complete scrub and re-gown, thus contributing to the length of
68each surgery.
69     (d)  Unknown to Judge Donahey, the anesthesiologist who
70provided anesthesia services was also a resident student
71employed by the Board of Regents and, as such, performed
72anesthesiology services for patients being operated on by Dr.
73Cahill and others while under only partial supervision by a
74board-certified anesthesiologist who was the anesthetist's
75professor. The supervising anesthesiologist was simultaneously
76supervising the anesthesia services of the other patients.
77     (3)  The risks associated with this complicated and lengthy
78surgery, as known to all of the physicians participating in the
79surgery, were increased by a combination of factors. The
80following risks were not known by Judge Donahey and were not
81conveyed to him by the physicians:
82     (a)  Hypotensive anesthesia was employed for Judge
83Donahey's surgery. Hypotensive anesthesia is a technique
84employed during spinal surgery in which blood pressure is kept
85artificially low through the administration of medicine in order
86to minimize bleeding.
87     (b)  Low blood pressure has an additive ischemic effect on
88blood flow when combined with blood loss, placing certain vital
89organs at risk for decreased blood flow. The optic nerve, which
90stimulates vision through the brain, is part of the organ of the
91eyes and, during spinal surgery, is at risk for decreased blood
92flow.
93     (c)  Hemoglobin drops with blood loss and, as such, is the
94parameter monitored, together with systolic and diastolic blood
95pressures, to ensure adequate blood flow to all parts of the
96body during surgery, especially during the practice of
97hypotensive anesthesia.
98     (d)  Prone body positioning is known to exacerbate the
99cumulative effects of low hemoglobin and low blood pressures,
100and Judge Donahey's surgery was performed in the prone position.
101     (e)  The resident who provided anesthesia services was
102educated and trained in the increasing cumulative risk of vision
103loss due to low blood pressure, blood loss, and lengthy surgery
104and knew that a patient was at increased risk of loss of vision
105due to ischemic optic neuropathy when hemoglobin drops below 10.
106Testimony indicated that Judge Donahey's hemoglobin was below 10
107for about 4 hours.
108     (f)  The resident who provided anesthesia services was
109educated and trained in these additive effects and also knew
110that increased risk of vision loss may occur due to ischemic
111optic neuropathy when systolic blood pressure drops below 100 mm
112Hg. Judge Donahey's systolic blood pressure dropped below 100 mm
113Hg during the same period in which his hemoglobin was below 10,
114and, further, Judge Donahey required and received neo-synephrine
115in order to elevate his systolic blood pressure.
116     (g)  The surgeons who performed Judge Donahey's spinal
117surgery were never directly informed of the low hemoglobin or
118low systolic blood pressure since those symptoms were not deemed
119a risk requiring the interruption of surgery.
120     (h)  Despite the knowledge of the risks associated with
121hypotensive anesthesia and complicated spinal surgery, the
122physicians ultimately relied on and employed slightly differing
123minimum standards for blood pressure and hemoglobin, thereby
124creating confusion in the context of the surgery, thus
125increasing the overall risk to Judge Donahey, and
126correspondingly increased the likelihood that ischemic optic
127neuropathy would occur.
128     (i)  The physicians involved in Judge Donahey's surgery
129acknowledged that the occurrence of blindness arising from
130decreased blood flow to the optic nerve, or ischemic optic
131neuropathy, had increased in the 5 years immediately preceding
132Judge Donahey's surgery.
133     (j)  Vision problems related to surgery had been reported
134about 120 times in medical literature for this surgery and Dr.
135Cahill had performed surgery on three previous patients which
136resulted in unilateral vision loss. A significant portion of
137these cases involved patients who were in the prone position
138during lengthy surgery. This problem had been discussed by Dr.
139Cahill, his resident students, and staff and had been discussed
140at national meetings. Both the literature and the discussions
141reflected that a significant causative effect was reduced blood
142pressure and lowered hemoglobin, which would cause damage to the
143optic nerve.
144     (4)  The surgeons who performed Judge Donahey's surgery
145acknowledged the option of performing the surgery in two stages
146on different days, thereby limiting anesthesia time in each
147procedure. Judge Donahey was never informed of the cumulative
148risks that were exacerbated by the length of his surgery and was
149not informed of the option of having his surgery performed in
150two stages. If Judge Donahey had been informed of all the risks
151and of the option of staged surgery, he may have elected the
152staged surgery, thus avoiding the lengthy anesthesia, and would
153not be blind today, and
154     WHEREAS, all of the advice and consultation between Judge
155Donahey, Judge Donahey's wife, and Dr. Cahill was conducted in a
156manner that led Judge Donahey, with good cause, to believe that
157Dr. Cahill would perform his surgery or that it would be
158conducted by Dr. Cahill or his assistants under his direct and
159immediate supervision and in his presence. In fact, Dr. Cahill
160and the University of South Florida knew that a significant
161portion of the surgery would be performed by persons unknown to
162Judge Donahey, each of whom was significantly less qualified by
163training and experience than Dr. Cahill, and that significant
164portions of the surgery would be conducted during Dr. Cahill's
165lengthy absences from the operating room, and
166     WHEREAS, all communications to Judge Donahey from the staff
167of Tampa General Hospital and the staff of the University of
168South Florida reinforced and represented that it was Dr. Cahill,
169the well-known and renowned physician, who would be performing
170the surgery. Documents admitting the patient to Tampa General
171Hospital reinforced Judge Donahey's belief that his care and
172treatment would be under the direct control and supervision of
173Dr. Cahill by referencing only Dr. Cahill by name as the
174surgeon, and
175     WHEREAS, it is the policy of the State of Florida to
176require physicians who are not insured for medical malpractice
177to notify their patients in clear, unequivocal language of the
178lack of insurance. However, the University of South Florida
179avoids informing potential patients that if one of its employees
180makes an error that results in devastating injury and damages,
181the patient may be limited to the recovery of $100,000 per claim
182or $200,000 per incident, regardless of the severity of the
183incident or injury, including death, unless the patient is able
184to have the Legislature order full payment pursuant to a claim
185bill, and
186     WHEREAS, the records of the University of South Florida are
187such that it is impossible to determine who was or was not
188present at any time during the surgery, who performed any parts
189of the surgery, or the length and number of times when nothing
190was taking place because of the absence of a specific surgeon to
191do a specific procedure. The university has provided no
192explanation of what went wrong. To the extent that any
193investigation was conducted by the university, such information
194has not been submitted for review. Even after repeated requests,
195the university has failed or refused to explain the delay to
196Judge Donahey. As a result, it is impossible to determine with
197any degree of accuracy who performed what parts of the surgery
198during the four surgeries, or why a surgery scheduled to last 4
199hours lasted more than 10 hours, and
200     WHEREAS, although Dr. Cahill's dictation of what occurred
201in the operating room during Judge Donahey's surgery was
202supposed to occur during the surgery, the dictation was
203completed one-half hour before the surgery was finished. In
204addition, the report was dictated as if describing a personally
205observed event. However, much of the surgery was conducted by
206others in Dr. Cahill's absence and without his direct
207supervision. No operative record was maintained by the other two
208surgeons who were present during Dr. Cahill's absence, and
209     WHEREAS, in sworn testimony Dr. Cahill admits that he
210doesn't remember what happened and that he cannot recall what
211parts of the procedure he performed, when he was absent, when he
212was present, or anything about what happened in his absence. In
213statements taken under oath, Dr. Cahill could not explain how he
214happened to be covering three other surgeries while Judge
215Donahey was under prolonged anesthesia. Dr. Cahill testified
216that it was his policy that although he might supervise more
217than one surgery at a time, this would be done only in
218circumstances in which one serious surgery was performed at the
219same time as minor surgery of short duration, and
220     WHEREAS, in accordance with s. 766.106, Florida Statutes,
221Joseph G. Donahey, Jr., joined by his wife, Tena Donahey, filed
222a notice of intent to commence litigation, took statements of
223the physicians and the anesthesiologists involved, and supported
224their notice of intent to commence litigation with the requisite
225affidavits required by law, and
226     WHEREAS, the Board of Regents of the State of Florida
227denied liability as authorized by s. 766.106, Florida Statutes,
228and
229     WHEREAS, Joseph G. Donahey, Jr., filed a lawsuit against
230the Board of Regents of the State of Florida in the Thirteenth
231Judicial Circuit of Hillsborough County, Florida, and took
232discovery depositions of the physicians involved, obtained the
233records relating to the care and treatment involved, and fully
234complied with all pretrial requirements of law, and
235     WHEREAS, the Board of Regents formally offered to settle
236all claims of the plaintiffs, Joseph G. Donahey, Jr., and Tena
237Donahey, by the payment of $200,000, which, pursuant to s.
238768.28, Florida Statutes, represented the maximum amount that
239the Board of Regents could be required to pay Joseph G. Donahey,
240Jr., and Tena Donahey if they won their lawsuit, absent the
241passage of a legislative claim bill. The penalty for not
242accepting that offer would be that Joseph G. Donahey, Jr., and
243Tena Donahey would have to pay the attorney's fees of the Board
244of Regents if they lost the litigation, and
245     WHEREAS, Joseph G. Donahey, Jr., and Tena Donahey formally
246accepted the proposed offer of settlement conditioned upon the
247release being a standard release of a defendant from liability,
248and
249     WHEREAS, the Board of Regents submitted for signature to
250Joseph and Tena Donahey a proposed release that would have
251prevented them from seeking relief from the Legislature, and
252Joseph and Tena Donahey refused to sign a release containing
253such a limitation, and
254     WHEREAS, the Board of Regents subsequently tendered a
255release from which the restriction against seeking legislative
256relief had been removed, which release was executed to the Board
257of Regents of the State of Florida and accepted by the board,
258and
259     WHEREAS, it was the intent of Joseph G. Donahey, Jr., and
260Tena Donahey that the acceptance of the offer of settlement and
261the giving and tendering of the release would have the effect of
262removing responsibility for the financial expense of trial from
263the University of South Florida and the plaintiff but would
264allow Joseph G. Donahey, Jr., and Tena Donahey to make
265application to the Legislature for equitable relief under the
266circumstances set forth in this act. This intent was based on
267the well-founded belief that the university used a portion of a
268patient's deductible payments and payments from the patient's
269insurer for medical treatment to fund a self-insurance fund
270established for the purpose of covering the cost of injuries to
271patients receiving negligent medical care from medical personnel
272employed 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
275the University of South Florida Health Sciences Center's self-
276insurance fund, which is the agent of the University of South
277Florida Health Science Center Insurance Company, Inc. The South
278Florida Health Science Center Insurance Company, Inc., is a
279Vermont corporation, formerly registered in Bermuda, created to
280provide compensation to patients injured due to the fault of
281employees of the university, including personnel providing
282medical treatment. The South Florida Health Science Center
283Insurance Company, Inc., is a wholly owned corporation of the
284University of South Florida. The corporation is not registered
285as an insurance company in Vermont or Florida, is registered as
286a for-profit corporation in the State of Vermont, and is not
287registered as doing business in the State of Florida even though
288all of its business is effectively related to the University of
289South Florida.
290     (1)  The self-insurance fund is funded from fees paid for
291medical treatment by patients and patients' insurers and is
292administered by the university apart from the state budget.
293     (2)  The policy of the university is to never make payments
294from the fund of more than $100,000 per claimant unless required
295to do so by the Legislature pursuant to a claim bill.
296     (3)  The fund is also used to purchase reinsurance to
297reimburse amounts paid from the fund in excess of $1 million per
298incident, and
299     WHEREAS, Joseph G. Donahey, Jr., has suffered significant
300mental pain and suffering and loss of the enjoyment of his life
301by reason of his blindness and continued to serve as a circuit
302judge with great difficulty, and, upon his retirement from the
303bench, has found that his earning capacity as a teacher or as a
304lawyer has been significantly and adversely affected by his
305blindness, and
306     WHEREAS, in his attempt to seek relief from his blindness,
307Joseph G. Donahey, Jr., has incurred economic expenses that have
308not been compensated by insurance, and
309     WHEREAS, by reason of her husband's injuries, Tena Donahey
310has suffered an economic loss due to her need to assist him in
311his daily life and has also suffered a significant loss of
312consortium, and
313     WHEREAS, the payment of an additional $3 million to Joseph
314G. Donahey, Jr., and Tena Donahey to compensate them for damages
315sustained will be in furtherance of the reason the self-
316insurance fund was created and in furtherance of the insurance
317contract purchased by the fund, to wit: to pay full and just
318compensation to patients of the University of South Florida
319injured by reason of the fault of employees of the university,
320NOW, THEREFORE,
321
322Be It Enacted by the Legislature of the State of Florida:
323
324     Section 1.  The facts stated in the preamble to this act
325are found and declared to be true.
326     Section 2.  The University of South Florida is directed to
327draw a warrant in favor of Joseph G. Donahey, Jr., in the sum of
328$2 million payable from the University of South Florida Health
329Sciences Center's self-insurance fund or the University of South
330Florida Health Science Center Insurance Company, Inc., as
331appropriate.
332     Section 3.  The University of South Florida is directed to
333draw a warrant in favor of Tena Donahey in the sum of $1 million
334payable from the University of South Florida Health Sciences
335Center's self-insurance fund or the University of South Florida
336Health Science Center Insurance Company, Inc., as appropriate.
337     Section 4.  The amount paid by the University of South
338Florida pursuant to s. 768.28, Florida Statutes, and the amount
339awarded under this act are intended to provide the sole
340compensation for all present and future claims arising out of
341the factual situation described in this act which resulted in
342the injuries and damages to Joseph G. Donahey, Jr., and Tena
343Donahey. The total amount paid for attorney's fees, lobbying
344fees, costs, and other similar expenses relating to this claim
345may not exceed 25 percent of the total amount awarded under this
346act.
347     Section 5.  This act shall take effect upon becoming a law.


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