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October 26, 2014

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Desai, ex-patient settle but other defendants remain in lawsuit

Amount to be paid man who says he contracted hepatitis C in endoscopy clinic not disclosed

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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.

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Dr. Dipak Desai has settled with the first of thousands of former patients suing over last year’s hepatitis outbreak springing from his clinics.

Lawyers for Desai filed court papers this week disclosing they have reached a deal with Michael Washington, who alleges he was infected with the potentially deadly hepatitis C virus during a colonoscopy at Desai’s Endoscopy Center of Southern Nevada in 2007.

Washington’s suit, the first to go before a jury, is to be tried before District Judge David Wall on Oct. 19. But Washington will square off with one less defendant — Desai — if Wall, at a hearing Thursday, finds that both sides reached the settlement in good faith.

Several defendants would remain in Washington’s suit, including the nurses involved in his colonoscopy, the Endoscopy Center, and the pharmaceutical companies that manufactured and distributed Propofol, the anesthetic used in the procedure. Washington, a 69-year-old retired Air Force veteran, contends that sloppy handling of vials and syringes containing Propofol led to his infection.

In their court papers, Desai’s lawyers did not reveal the amount of the settlement, saying both sides agreed it would be confidential and disclosed only to the judge.

But there is some idea of the amount because there is a cap of $350,000 under state law on what Washington could receive for noneconomic damages. Washington’s wife, Josephine, is also a plaintiff in the suit, and the settlement likely included some noneconomic damages to her, as well.

Nevada Mutual Insurance, the company that provided Desai with malpractice insurance, is expected to pay the settlement.

Brett Schoel, one of the Sacramento lawyers who filed the court papers on Desai’s behalf, declined to comment Friday. So did Washington’s attorney, Ed Bernstein, who also would not allow Washington to be interviewed.

But in their court papers, Desai’s lawyers said the agreement, the result of extensive “arms-length” negotiations, “represents a fair compromise of the risks of both sides of proceeding to trial in this case.”

Desai’s risks were considerable because the Southern Nevada Health District was able to determine through genetic testing that Washington was infected with the hepatitis C virus during his procedure at the Endoscopy Center on July 25, 2007.

And records show that Desai is the one who performed the colonoscopy on Washington. As the owner of the center, Desai is also a defendant in cases where he didn’t perform the procedures and may face a lesser liability.

Professor Robert Correales, a torts expert at UNLV’s Boyd Law School, said Desai’s agreement in the Washington case is significant because it could prompt other settlements.

“I think it demonstrates that there may be a willingness to settle other cases with similar facts,” he said.

The key to striking deals in those cases will be the ability of the plaintiffs to establish the cause of their infections at the center, Correales said.

Aside from Washington, the Health District has linked only a small number of hepatitis C infections to Desai’s clinic through genetic testing. The district determined that a half-dozen patients contracted the disease on Sept. 21, 2007. Plaintiffs’ lawyers this week, however, revealed in court documents that they have discovered independent of the Health District a new cluster of infections at the center on March 15, 2007, and they’re working to uncover more clusters.

In all, about 300 former patients are alleging in lawsuits that they were infected. More than 4,000 noninfected former patients are suing over the stress of having to get tested for hepatitis C and other viruses.

Will Kemp, a lead plaintiffs’ lawyer in the endoscopy litigation, said he also thinks the Desai agreement will lead to other settlements.

But he added he doesn’t expect to see a rush to reach agreements until a jury holds one of the wealthy pharmaceutical companies liable for the infections. The damage caps in Nevada apply only to the health care providers, not the pharmaceutical manufacturers.

In their court papers, Desai’s lawyers contended that the evidence uncovered by the plaintiffs is stronger against the center’s employees than against Desai.

But the lawyers also said Desai risked a “sympathy verdict” in taking the case to trial and that there was a possibility that a jury would find him liable for what happened to Washington because of “the publicity of the case rather than its merits.”

Jeff German is the Sun’s senior investigative reporter.

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