State, federal agencies investigating clinic

By Brian Eckhouse

Friday, March 7, 2008 | 2 a.m.

The owners, managers and employees of the Endoscopy Center of Southern Nevada could all face an onslaught of criminal charges — and not just from the district attorney’s office.

In addition to that office’s criminal probe, the state attorney general’s office and federal officials have launched related inquiries into the center, which health officials say put at least 40,000 people at risk for hepatitis and HIV. Health agencies have traced six cases of hepatitis C to the clinic.

Metro Police and the district attorney’s office are investigating whether the managers and employees of the clinic were criminally negligent, and state officials have initiated a preliminary probe into whether the center defrauded Medicaid and insurance companies, said Conrad Hafen, chief of the state attorney general’s criminal division.

Federal investigators also are involved, Assistant District Attorney Chris Lalli confirmed, but it’s unclear whether the FBI is looking into the clinic’s Medicaid practices. The bureau declined to comment.

Evidence of fraud could prompt investigators to look for sometimes related crimes, including money laundering and racketeering, Nevada’s former U.S. attorney, Dan Bogden, said.

The criminal investigations will take weeks, if not months, despite mounting public pressure for investigators to lower the boom on the center’s owners, managers and employees. There’s no timeline for the investigations, District Attorney David Roger said.

It’s possible agencies will pool their resources for a massive investigation, Bogden said. A health care task force of regional and federal authorities is already in place.

There is no precedent in Nevada for a case of this nature or magnitude, Roger said. But that is not expected to discourage investigators. The state’s criminal negligence charge is fairly straightforward.

Disregard for — or indifference to — the health of patients, thus endangering their lives, constitutes criminal negligence. Specifically, medical employees can be found criminally negligent if they fail to provide the level of service, care or supervision that would be expected of an “ordinarily prudent, careful person under the same circumstances.”

The charge appears suitable in this case.

Health officials say staffers at the Endoscopy Center, following their bosses’ orders, reused syringes on individual patients, which can taint medicine with their blood, and then reused the single-dose medicine vials on multiple patients, which can pass on infections.

And though this is alleged to have been going on as far back as March 2004, no one working at the clinic ever blew the whistle, Southern Nevada Health District Senior Epidemiologist Brian Labus said Wednesday on “Face to Face With Jon Ralston.”

“They have ethical obligations to take care of those patients. In this case, nobody said anything,” Labus said. “We didn’t find out about it until unfortunately people were infected.”

In Nevada, anyone found guilty of criminal negligence can be sentenced to one to six years in prison and fined up to $5,000 per person endangered, officials said. The clinic also would be liable for a maximum $5,000 fine per patient. That could cost the clinic at least $200 million — and that’s not even considering the likely multimillion-dollar class-action suit filed by the patients.

But if any of the clinic’s patients die, and investigators conclude it was due to criminal negligence on the part of the clinic’s staff, those employees could face prison sentences of up to 20 years for each death, officials said.

Prosecutors might even pursue charges of second-degree murder or involuntary manslaughter.

“But it’s just so speculative,” Lalli said. “It’s all fact-driven, and we don’t know what the facts are yet.”

If, after any trial of the clinic’s staff wraps up, a former patient dies as a result of what transpired at the center, it’s unknown whether a judge would allow the case to be reopened, Lalli said. He couldn’t find a statute of limitations for the charge.

The matter is further complicated by the lengthy incubation period of HIV. It sometimes takes up to three years for a blood test to confirm a positive case of HIV.

“If you are negative (now), it doesn’t mean you’re clear,” said personal injury attorney Ed Bernstein, who is representing several patients.

Sun reporters Marshall Allen and Jeff German contributed to this story.