Lawyers: More cases of hepatitis discovered

By Jeff German

Tuesday, Sept. 22, 2009 | 10:58 p.m.

Lawyers suing the Endoscopy Center of Southern Nevada say they have discovered a new cluster of hepatitis C cases that originated at the clinic and predict the discovery will have a big impact on the massive litigation over the outbreak.

“This is just the tip of the iceberg,” attorney Will Kemp said Tuesday. “I think we’re going to find more and more clusters as we go forward.”

The Southern Nevada Health District has identified July 25, 2007, and Sept. 21, 2007, as the dates when the potentially deadly virus was known to have been transmitted at the Endoscopy Center, run by Dr. Dipak Desai. Tests revealed that one person was infected there on the July 25 date, and six picked up the virus on the Sept. 21 date, officials said.

But in court papers filed Tuesday, the plaintiffs’ lawyers said they have uncovered evidence independent of the health district that “strongly suggests” the virus was also transmitted to at least three patients who underwent colonoscopies at the Endoscopy Center on March 15, 2007.

The three patients, whose identities the lawyers are withholding for privacy reasons, are represented separately by three of the lead law firms suing Desai and the Endoscopy Center for malpractice.

The three firms — Kemp, Harrison & Jones; Mainor Eglet Cottle; and Gillock, Markley & Killebrew — made the discovery after months of comparing medical records of all of their clients in the case.

According to the lawyers and their court papers, the same physicians, nurses and nursing assistants participated in the colonoscopies of the three patients all within 90 minutes on March 15, 2007. “Patient A” underwent a colonoscopy at about 9:05 a.m., “Patient B” had one at 9:35 a.m. and “Patient C” went through the procedure at 10:35 a.m.

The lawyers said medical records show all three cases involve the same genotype, or strain, of the hepatitis C virus, as well as the same anesthetic, Propofol. The lawyers contend that the sloppy handling of vials and syringes containing Propofol led to the infections.

The discovery is expected to give the plaintiffs’ lawyers ammunition to attack the defense’s claim that there was no widespread abuse of procedures at the clinic.

“This is pretty compelling proof,” attorney Nia Killebrew said. “It goes toward establishing that it wasn’t just an isolated incident or two. This was indeed a pervasive practice at this clinic.”

Attorney Robert Eglet said he and his colleagues aren’t finished sharing records and plan to extend their cooperation to other law firms suing the Endoscopy Center, as they work to learn how their clients were infected.

“I’m confident that we’re going to find additional clusters out there,” Eglet said.

Brian Labus, the health district’s senior epidemiologist, said this was the first he’d heard of a new grouping of infections linked to the clinic, but that he was not surprised.

“We know that there were other days when there was potential for transmission,” he said.

He added, however, that he expects the discovery to have a greater impact on the litigation than the health district’s investigation into the hepatitis C scare.

“In the end, it doesn’t change the findings that we discovered in our investigation,” he explained. “We weren’t trying to find every case. We were looking at the big picture of what happened there.”

He said the health district expects to make public a final report of its 18-month investigation soon, but has not set a date for its release.

In their court papers, the plaintiffs’ lawyers listed the three patients as new witnesses in the case and said they would turn over copies of “relevant medical records” of the patients to the defendants as part of their obligation under the court’s rules.