Deadline spurs endoscopy lawsuits

By Jeff German (contact)

Saturday, Feb. 28, 2009 | 2 a.m.

As many as 5,000 former patients caught up in last year’s hepatitis scare are suing the Endoscopy Center of Southern Nevada and its related clinics in what is regarded as the largest class of medical malpractice cases ever to hit Nevada courts.

The number of legal actions swelled this week as lawyers hurried to file to meet the one-year statutory deadline for filing lawsuits. Friday was the anniversary of the outbreak of the scare. As of 3 p.m., 53 suits had been filed in the previous 24 hours.

Lawyers estimate that little more than 100 of former patients who sued had tested positive for hepatitis C. They are getting priority in the courts because of their potentially life-threatening conditions.

The vast majority of the plaintiffs did not test positive. They are suing for the stress they underwent in testing and waiting for results.

The volume is daunting for the court system.

“It’s going to be a nightmare for District Court,” said veteran medical malpractice lawyer Robert Eglet, whose firm alone has 3,466 clients, including 27 who think they contracted hepatitis C because of unsafe conditions at the clinics. “Somebody’s going to have to figure out a way to process these cases through the system.”

Will Kemp, a seasoned civil litigator who is playing a leading role among the lawyers suing the endoscopy center, described the process of moving the claims through the courts as overwhelming, with more than 200 lawyers on both sides involved in the litigation.

Kemp said he’s concerned that some plaintiffs may not see resolution of their cases within the five years required by state law. Cases that miss the deadline are dismissed.

District Judge Elizabeth Gonzalez, who oversees all judges who handle civil cases, acknowledged the courts face a difficult task.

“It’s an incredible burden,” she said. “We’re doing the best we can with the resources we have, but it’s bogging us down.”

For the past several months, District Judge Allan Earl has been overseeing the start-up phase of the litigation, dealing with pretrial matters in all the cases, including the taking of depositions and other efforts to collect evidence. Las Vegas lawyer Floyd Hale has been helping Earl sort things out, as a specially appointed hearing master.

Late last year, Earl ruled that plaintiffs without positive tests for hepatitis C could not sue as a class, so lawyers have been bundling their clients, naming dozens of plaintiffs in one suit. Earlier in the week, as the deadline approached, one attorney filed four suits, each with more than 90 plaintiffs.

Gonzalez said the first case is scheduled to go to trial Oct. 19, with 15 others set through January of 2011.

But before any trial can take place, the lawyers need to collect evidence, and that has proved difficult over the past several months.

“We’ve been somewhat handcuffed,” said Ed Bernstein, another plaintiffs’ lawyer.

Bernstein said attorneys have had a tough time getting information out of several law enforcement agencies investigating the hepatitis scare, including Metro Police and the FBI.

The Clark County Health District has also stalled legal efforts by not making public its final report of its investigation into the endoscopy center, lawyers said.

Additionally, lawyers said, the clinic’s physicians (including owner Dipak Desai), nurses and other employees have either asserted their Fifth Amendment rights against self-incrimination and refused to testify at depositions or have put the lawyers on notice that they will take the Fifth if questioned.

Desai, who suffered a stroke last year, has taken that a step further.

His lawyer, Richard Wright, has informed lawyers that Desai is too sick to even show up to take the Fifth Amendment at his deposition in a couple of weeks. Wright is expected to assert the constitutional privilege for his client at the deposition.