Desai may be fit to proceed, but other holdups remain

By Marshall Allen (contact)

Wednesday, July 29, 2009 | 2 a.m.

Dr. Dipak Desai, whose clinic caused a massive hepatitis C outbreak because of unsafe injection practices, has recovered sufficiently from a stroke to answer charges by the Nevada State Medical Examiners Board, but other legal entanglements are still slowing the case.

A preliminary neurological assessment of Desai after the stroke had shown he was not mentally fit to defend himself, which might have robbed Nevadans of their pursuit of justice in the case.

But follow-up tests and assessments by other specialists, combined with Desai’s improvements since April, show he may be “impaired” but is not “unable” to assist his attorneys, according to an order released Tuesday by the medical board.

“He is competent, and that means we are going to hearing,” said Louis Ling, executive director of the medical board.

Desai faces three counts each of malpractice, violating the trust of a patient for financial gain and bringing the medical profession into disrepute, in connection with his treatment of three patients, and one count of repeatedly failing to exercise the level of skill expected from a physician.

The outbreak led health authorities last year to recommend testing for 50,000 people and prompted a flood of lawsuits.

According to Dr. Thomas Kinsora, a clinical neuropsychologist, Desai “is clearly aware of the charges against him, has a good knowledge of the facts of the case and understanding of the role of the key players in the judicial system.”

Desai may be on the borderline in his ability to assist in his defense, Kinsora wrote, but is “acceptably” competent.

The medical board’s case will proceed, but legal contingencies are still slowing the process. The Nevada Supreme Court needs to rule on a dispute between Desai’s attorneys and the Southern Nevada Health District. Terry Coffing, an attorney for the health district, said Desai’s attorneys have filed a broad request for information about the agency’s investigation that could lead to the compromise of patient privacy. For example: Hepatitis C can be contracted through sexual contact, so interviews with patients could contain sensitive information.

“If we can’t keep information confidential, we won’t be able to get information,” Coffing said.

The specter of the criminal investigation has led doctors, nurses and office managers affiliated with Desai’s clinics to exercise their Fifth Amendment rights to not incriminate themselves. Through a lawyer, Desai asserted his Fifth Amendment right against self-incrimination and refused to answer questions at a March deposition in the civil litigation.

Much of the litigation was automatically stayed last week after three clinics at the heart of the hepatitis C scare, all run by Desai, filed for Chapter 7 bankruptcy protection.

Desai has been ordered to be questioned under oath on Aug. 11 in the bankruptcy case.

Plaintiffs attorneys have filed a motion in Bankruptcy Court seeking to lift the stay. A hearing is set for Aug. 19.

Sun reporter Jeff German contributed to this story.