Hepatitis scare malpractice cases already in works

By Steve Kanigher

Friday, Feb. 29, 2008 | 2 a.m.

Las Vegas class action attorney Will Kemp said he got a phone call Wednesday from a man who feared he had contracted a harmful virus at a medical clinic.

“At first I thought he was kidding,” Kemp said.

He wasn’t. As Kemp learned in the 7 p.m. call, the Endoscopy Center of Southern Nevada is believed by the Southern Nevada Health District to have exposed as many as 40,000 patients to the hepatitis C virus.

Less than 24 hours after the call, Kemp filed a class action lawsuit in District Court in Clark County against the Endoscopy Center. Kemp is seeking payment to cover tests for hepatitis B and C on his two Nevada clients, former Endoscopy Center patients Michael Cordero and Richard Taylor. Kemp also wants them tested for the HIV antibody, and they’re seeking damages for pain and suffering.

If the court grants the lawsuit class action status, other former patients could become part of it.

“I would think at least hundreds of people have been infected just on the basis of the percentage of people who have hepatitis or AIDS in the general population,” Kemp said. “There’s so many things wrong here. Using dirty syringes is a Third World practice. My clients are scared to death that they could have an infectious disease.”

Fellow Las Vegas attorney Gerald Gillock, a medical malpractice specialist who represents one of the six people the Health District believes were infected with hepatitis at the clinic, said he wouldn’t be surprised if this turns out to be the state’s largest-ever class action medical malpractice case.

“If these allegations are true, there will be a number of medical malpractice cases,” Gillock said. “Once these people get tested, it could be a real tragedy.”

Under a 2004 state law, damages for pain and suffering from medical malpractice cannot exceed $350,000 per incident. But Gillock said it is a certainty that the constitutionality of the cap will be challenged before the Nevada Supreme Court and that the $350,000 ceiling could be struck down before any Endoscopy Center cases make their way through the courts.

The clients represented by Kemp and Gillock make up what UNLV Boyd School of Law professor Jean Sternlight said could be two types of plaintiffs — those who have been infected with a virus and are therefore in line for potential big-money damages, and a larger number of individuals who aren’t infected but claim to be traumatized by the threat of infection and seek compensation for testing.

“There’s no reason to believe that only six people were infected,” Sternlight said. “The clinic should have known that what it was doing was wrong.”

The Associated Press reported Thursday night that another class action suit has been filed, naming Charles Anthony Rader Jr. as a plaintiff who claims he could have been exposed to the diseases at the Endoscopy Center. Las Vegas attorney Peter Wetherall is handling the case.