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Retired judge Joe Donahey, blinded during surgery, makes case for justice to the state — again

The retired judge makes his way to the front of the classroom, holding on to someone's arm. His step is tentative, his demeanor unsure. A gold button from his black blazer drops to the floor, but he's unaware. Joe Donahey is 74. He has been blind for a decade and retired almost as long. Several times a year he argues a mock trial here, in front of a dozen senior citizens taking a law and order class at Eckerd College in St. Petersburg. In this fake courtroom, he plays the defense attorney. He can't read the body language of the jury. He can't check his notes or read the faces of the witnesses. But here he has never lost a case. When he begins his argument, the old fire is back.

Ladies and gentlemen of the jury.

His voice booms, building and receding like a passing train. He dismantles the evidence. The jury is riveted. In real life, the retired circuit court judge no longer trusts himself with real cases and real juries. He's let go of the power of the bench, the control he had in court, and surrendered to a life of being led around by the arm. But there is one case he is still fighting. His own.

His last and most important case is one of a man blinded during a botched back surgery.

His doctors were from the University of South Florida College of Medicine. So he's seeking compensation from the state for losses that can't really be calculated. He's asking for $1.5 million.

He has submitted his case to the Florida Legislature five times. Each year, he's been ignored. This year is his sixth attempt.

It happened a decade ago. The last thing he saw was a clock. He can still see its hands stuck on 7:28 a.m. as he was wheeled into the operating room. He lay face down for the next 10 hours, his back cut open so doctors could put a cage in it.

His lower back had been killing him. Doctors warned him he might die, he might become a paraplegic, he might have a dropped foot. But they didn't say a word about going blind.

A day later, Dr. David Cahill, his neurosurgeon, visited him and told him the surgery had gone very well. Then Donahey remembers the doctor saying:

"About the eye thing, I'm sorry."

The doctors recommended an experimental drug, hoping it would stimulate his optic nerve. Instead he hallucinated. Blobs of lavender, green, red, yellow and blue bounced around in the darkness.

His optic nerve had died. The experts told him that his back had been left open on the operating table too long, lost too much blood.

Somehow he had been left with a pinpoint, a tiny ray of light. He returned to the bench in Pinellas-Pasco Circuit Court with a seeing eye dog and a white cane, and served three more years before retiring. He went to doctors around the world, tried a program from Germany. Every now and then, he would catch a glimpse of something. The blue, orange and red of a package of Lance peanut butter crackers. The top of his pastor's head.

"Jim, you're going bald," he blurted out.

Then it disappeared.

• • •

After he went blind, Donahey and his wife settled a lawsuit with USF for $200,000. This is the maximum that any government entity must pay out in a legal claim — even if a jury awards millions.

Donahey always thought he was owed more and refused to sign away his right to ask the Legislature to pass a claims bill compensating him.

There are 35 compensation claims before the Legislature this year. State lawmakers do not get excited about these bills. Some years they don't pass any.

Spend years in jail for a murder you didn't commit, like Freddie Pitts and Wilbur Lee did, they might listen to you. Lose your eyesight in back surgery like Donahey, no guarantees.

Targeting a state school is even tougher. "Some people are unwilling to point the finger at a state university," said Bill Wagner, Donahey's Tampa attorney.

USF attorney Robert E. Banker says there's no proof that the school's doctors made Donahey blind. He doesn't dispute that Donahey was blinded in the surgery, but he has lined up experts who say that perhaps he had a pre-existing problem with his optic nerve. He likened it to how some people might have a heart attack for an unknown reason.

With this year's state budget resembling a picked-over animal carcass, it would seem to be the worst year to try a claims bill. But Donahey and his lawyers, always refining their argument, have discovered what they say is a "secret" USF medical school self-insurance fund. It's a fund set up to cover these kind of damages.

Donahey wants lawmakers to order USF to pay him out of that fund.

It's a tough argument to win and Donahey knows it. Those who crow the loudest, who get the most publicity, tend to be heard, Donahey said. Smaller voices are easier to ignore. "It should apply equally to the prisoner who is wrongfully parked in a state prison for many years and to a judge who is wrongfully injured," he said.

Meaning, justice should be blind.

• • •

Let's listen to Joe Donahey's argument on behalf of Joe Donahey.

He lists his neurosurgeon's blunders:

Kept him open on the operating table for more than 10 hours.

Operated on three other people that day.

Knew that another three people had been partially blinded on his operating table following the same surgery.

With each one, his voice grows more emphatic. For a moment he's in the courtroom again even though he's really in the game room of his Oldsmar home.

The argument spews logic and facts and lawyerly indignation. Personal anger seems to have run off.

He explains it this way: Doctors can be like trial lawyers. They can exhibit hubris. They hold people's lives in their hands.

"When you get to a point where you have confidence in yourself, you start taking risks," he said. "Not risks for you but risks for your patients. That's where it becomes unacceptable."

He understands hubris. Judges and lawyers hold lives in their hands too.

"You had some of that," says Tena, his wife of 41 years.

He nods.

As a trial attorney, he made a name for himself by defending a man who had confessed to murder. He drew national attention by fighting with a persistence that was unheard of at the time. Over six weeks, on a motion hearing, he called 42 witnesses to testify that the confession was coerced. Police had interrogated his client, Tom Sawyer, for 16 hours.

Looking back on his career, he can see that overconfidence led to mistakes in other trials. He didn't force a client to testify who should have, or he let a client take the stand when he knew it was a mistake. He thought he was good enough to win anyway.

The doctor who operated on him died in a plane crash in 2003. Donahey doesn't hate him. He knows the doctor wasn't trying to hurt him. He perhaps even forgives him.

"Maybe I'm more philosophical about it."

But there are some things he has a hard time accepting.

This past week, he missed an old friend's funeral because his wife was sick and no one could take him. His snooker table is now his wife's sewing table. The 27 rose bushes that he once carefully tended to in his front yard are long dead.

And he hasn't seen his wife's face in 10 years.

Times researcher Shirl Kennedy contributed to this report. Leonora LaPeter Anton can be reached at [email protected] or (727) 893-8640.

Retired judge Joe Donahey, blinded during surgery, makes case for justice to the state — again 02/13/09 [Last modified: Friday, February 13, 2009 3:21pm]
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