Police ask DA to seek criminal neglect charges against Desai

Steve Marcus

Dr. Dipak Desai, the majority owner of the Endoscopy Center of Southern Nevada, leaves a hearing at Las Vegas City Hall on March 3, 2008.

By Jeff German

Thursday, Nov. 19, 2009 | 2 a.m.

Metro detectives late Tuesday handed the district attorney’s office the brunt of their criminal investigation into last year’s hepatitis C outbreak, for what is expected to be a groundbreaking prosecution.

Police are asking the district attorney to prosecute Dr. Dipak Desai and other medical personnel at his Endoscopy Center of Southern Nevada on a rarely pursued charge of criminal neglect of patients, courthouse sources said.

Those facing potential charges with Desai include the anesthetists who injected patients with the sedative propofol during routine colonoscopies, the sources said.

The Endoscopy Center and other Desai clinics are suspected of exposing thousands of patients to the potentially deadly hepatitis C virus during medical procedures. About 5,000 former patients, including roughly 300 alleging that sloppy handling of propofol led to their infections, have filed suit in District Court.

Prosecutors expect to consider filing at least seven patient neglect charges against Desai — one for each of the seven patients health officials determined were infected with hepatitis C at the Endoscopy Center in 2007.

Detectives are not finished investigating, but “the majority of the criminal investigation has been completed, and we have turned over our reports and findings,” said Capt. Al Salinas, who oversees Metro’s Organized Crime Bureau.

Prosecutors assigned to the case won’t evaluate the evidence for several weeks, however, because they are handling other cases.

“It’s a voluminous case and it’s going to take us some time to review the material and determine which charges, if any, should be filed,” District Attorney David Roger said.

A decision on whether to prosecute won’t come until the first of the year, Roger added.

Desai’s attorney, Richard Wright, declined to comment.

But courthouse sources said the criminal neglect charges, if ultimately filed, would present challenges for prosecutors in court.

The statute, NRS 200.495, requires prosecutors to prove that Desai and his staff reused syringes and propofol vials to save money knowing that they were endangering the lives of patients. That’s much harder to prove than a civil case of medical malpractice, where a physician simply makes an honest professional mistake.

According to the statute, criminal neglect that results in the death of a patient is a felony punishable by up to 20 years in prison. If the neglect results in “substantial bodily” harm, it is a felony drawing a maximum six-year term behind bars. Neglect of a patient without bodily harm is a gross misdemeanor.

Police have been investigating the endoscopy case under the theory that patients who were infected with the hepatitis C virus suffered substantial bodily harm.

Chief Deputy District Attorney Scott Mitchell, who will oversee review of the evidence police presented, declined to comment on the charges being sought.

Veteran prosecutors in the district attorney’s office could not recall the office ever filing a criminal neglect charge against a physician.

The attorney general’s office prosecuted a Las Vegas nursing home employee on the charge a decade ago. The employee ended up pleading guilty to gross misdemeanor neglect of a patient for striking a resident across the face while trying to give the resident a shower.

In the case against Desai and company, detectives expect that the Southern Nevada Health District’s long-awaited investigative report on the hepatitis outbreak will bolster the evidence they have collected. They are hoping to get the report soon and give it to the district attorney.

Brian Labus, the health district’s senior epidemiologist, said Wednesday the report is still undergoing a “review process” at the agency.

The police investigation, now more than 21 months old, is one of the biggest ever undertaken by the Organized Crime Bureau.

Salinas said detectives provided the district attorney’s office with more than 10,000 pages of documents, reports and transcripts of witness interviews. Police interviewed more than 100 people.

From the beginning, there was a lack of cooperation from witnesses, many of whom took the Fifth Amendment, and investigators had to pore over 98,000 medical files containing hundreds of thousands of pages of documents.

Plaintiffs’ lawyers in the massive civil litigation said the completion of the police investigation should help lawyers move forward with key depositions.

“It will eliminate the overbroad use of the Fifth Amendment that defense attorneys have been using to stall the case,” Will Kemp said.

As many as 20 doctors, nurses and administrators at Desai’s clinics have asserted their Fifth Amendment rights against self-incrimination and refused to testify in depositions, Kemp noted.

“If they’re not going to be indicted, they may be forced to testify,” another plaintiffs’ lawyer, Ed Bernstein said.

Bernstein said the door also is now open for patients who haven’t gotten their medical records over the past two years to finally get them.

“I’m happy this is finally occurring,” he said. “It’s about time.”