Clinic patients’ choice: Recourse or privacy

By Jeff German

Saturday, May 10, 2008 | 2 a.m.

Hundreds of plaintiffs suing over Southern Nevada’s hepatitis C scare could wind up victims of the court system, as the massive litigation embarks on a course destined to pry into their personal lives.

On Friday, Floyd Hale, the lawyer tapped to be the District Court “special master” coordinating the gear-up phase of the lawsuits, met for several hours with batteries of lawyers on both sides to decide how far the defense can intrude on the privacy of the plaintiffs.

The sometimes heated debate illustrated the emerging complexities of the potentially lengthy and expensive litigation and how difficult it will be to identify exactly how the plaintiffs were infected.

Lawyers for the Endoscopy Center of Southern Nevada and its chief operator, Dr. Dipak Desai, came to court armed with a 27-page questionnaire that they wanted all of the infected plaintiffs to fill out before proceeding further with their legal claims.

The questionnaire touched on a variety of personal subjects, including the medical history of the plaintiffs, whether they have ever injected heroin, cocaine or methamphetamine and how many sexual partners and what kind of sex they have had throughout their lives.

Daniel Curriden, who represents the endoscopy center, said the questionnaire was necessary to help his client defend itself in the civil litigation. The hepatitis B and C viruses and HIV can be contracted in many ways, making it difficult to put the blame solely on Desai and his clinics.

But the plaintiffs’ lawyers were incensed over the personal nature of many of the questions and, after a little haggling, persuaded Hale to remove some of them.

Hale makes recommendations to District Judge Allan Earl, who has the final say.

Ed Bernstein, one of the lead lawyers on the plaintiffs’ side, said during a break that the questionnaire was “humiliating” and “embarrassing” to his clients, many of whom are senior citizens.

“It’s designed to intimidate them and deter them from pursing their case,” he said.

The questionnaire, Bernstein added, was also aimed at deflecting responsibility for what happened away from the endoscopy center, which has been accused of causing a hepatitis outbreak by reusing syringes and single-dose vials.

Hale said his recommendation to Earl will be that plaintiffs who contend they contracted hepatitis C from Desai’s clinics would have to identify their sexual partners within the past 15 years. Those who alleged they now have HIV would have to go back 10 years.

Will Kemp, another lawyer for the plaintiffs, complained to Hale that many of the questions unfairly intruded upon the sex lives of the plaintiffs. The questions offered no potential value as evidence, Kemp said.

The special master agreed, cutting several other sex questions, including one asking men if they ever had sexual relations with a man.

Hale also refused to allow a question asking plaintiffs whether they have participated in an alcohol or substance abuse program. And he cut a question asking whether a plaintiff had ever undergone a Botox injection.

A question about whether a plaintiff had ever snorted cocaine was changed for clarity reasons to whether the plaintiff had ever “shared a straw or other paraphernalia while snorting cocaine.” Curriden said some medical journals have reported that hepatitis C can be contracted by snorting cocaine from a straw used by someone infected with the virus.

Dozens of other personal questions, however, were left intact.

And defense lawyers will be allowed to ask during depositions, if necessary, many of the questions stricken from the questionnaire.

Jeff German is the Sun’s senior investigative reporter.