Florida's victim claim system is a disgrace
By A TIMES EDITORIAL
Published August 13, 2007
Eight years after Joseph Donahey lost his eyesight and his judicial career to a back surgery by state university doctors, he finally got the chance in December to plead his case for compensation to a state special master. The special master's report has been written, but Donahey is being told nothing. Even stranger, the two legislators who sponsored bills on his behalf can't find out what the report says.
In a system of victim claims compensation that the Florida Legislature has turned arbitrary, tedious, political and heartless, Donahey has learned it is also secretive. The publicly financed reports that shed light on the validity of individual claims are kept secret and off limits to the public as long as legislative leaders choose to keep the claims off the agenda.
The secrecy of special master reports is not new, nor does it rank as the worst of the problems plaguing the Legislature's broken claims system. But it is a symptom of the disease, and it is indefensible.
Sen. Dennis Jones, R-Seminole, and Rep. Janet Long, D-Seminole, know firsthand. They filed companion bills this year to pay Donahey and his wife $1.5-million in damages for his claim of medical malpractice. The bill never got heard, and neither the House nor Senate special master report has been shared with them.
Says Jones, a legislative veteran: "Here I am the sponsor of the bill and I can't even get the staff report that came out of the special master." Says Long, a rookie: "I'd like to have as much information as I can before I file that bill again. I quite frankly just don't understand the thought process behind this."
The thought process, apparently, goes like this: State law provides the Legislature with a public-records exemption for "a draft of a bill analysis or fiscal note until the bill analysis or fiscal note is provided to a person other than an employee of the Legislature." Both chambers choose to interpret a special master report as qualifying for that exemption. To put it politely, that's a stretch.
In the Senate, the cases are handled by law judges from the state Division of Administrative Hearings to help insulate the findings from political influence. The Senate paid $75,000 for the 31 cases heard this past year but has deemed them "drafts" for the single convenience of avoiding their disclosure.
The special masters play an important role, hearing and weighing evidence on each claim and providing a recommendation that can only help lawmakers, the public and the victim better understand the merits. So why hide the information? In the absence of a better explanation, the public is left to assume that lawmakers want to conceal evidence that they are refusing to pay claims that their own advisers judge as deserving.
Donahey, a former Pinellas-Pasco circuit judge, is only one of the many victims who run up against the state's sovereign immunity and a 1973 law that limits claims of negligence to $200,000 without specific legislative approval. Most victims wait for years, and many are never compensated. Some years, the Legislature simply refuses to consider any claims. Other times, the awards go to the victims with the most political influence. The only claim paid this year was an $8.5-million award to a woman who was paralyzed by a public health clinic's negligence. Her quest took 18 years.
In Donahey's case, he awoke from a 10-hour back surgery at Tampa General Hospital on Jan. 11, 1999, to discover that he had lost his eyesight. He filed a malpractice claim that was settled by the former university Board of Regents for the $200,000 limit. His claim was introduced in the Legislature in 2002, but it has yet to be heard by a single committee even though Sen. Jones says university insurance could cover the cost.
"Most people don't believe me when I tell them what has happened," Donahey says. "They say, 'My God, you're a lawyer and a judge!' I can only say that this has been a very humbling experience."
The judge is too kind. That he is left to wonder, even after a hearing officer has judged his case, is a disgrace.