Anatomy of a travesty: The Dipak Desai colonoscopy scandal

Joan Travis

Monday, Feb. 8, 2010 | 2:05 a.m.

On April 2004, Eddie Felix, a healthy 38-year-old las Vegan, went to the Southern Nevada Endoscopy Center for a routine colonoscopy. Dr. Dipak Desai, referred by Eddie Felix's personal physician, performed the procedure.

Almost four years later, Felix's life, and that of his wife and four kids, was shaken by a two-page letter from the Southern Nevada Health District. Dated February 27, 2008, the letter said he had been "identified in clinic records as a former patient of the clinic who was placed at risk for possible exposure to bloodborne pathogens. As a precaution, and in order to take appropriate steps to protect your health, we recommend you get tested for hepatitis C, hepatitis B, and HIV."

That's because, according to the SNHD in allegations that exploded onto the headlines nearly two years ago, some of Desai's employees had been reusing syringes and medical vials, creating the possibility that disease could spread from patient to patient. The SNHD notification went out to 50,000 people in February 2008.

Today Felix lives in fear, dreading the hematology report. Every few months, the lab technician draws a few syringes of his blood for testing. It takes awhile to get the report. Will it show hepatitis or HIV? Will he live or die? Will his insurance continue to cover this? If only his doctor had not referred him to that center for his colonoscopy ...

"It does get scary," Felix says. "I think about it. You're fighting a threatening disease that you don't know if you'll ever get. It makes me stronger. If it's not there right now, I'm not going to let it get me down. I think I'll deal with it when it does happen if it ever happens. Right now I'm not going to let it stop my life."

Approaching the two-year anniversary of the announcement involving Desai and the Endoscopy Center of Southern Nevada (ECSN), there have been no criminal charges brought, no personal-injury lawsuit taken to verdict or finalized settlement. There are none to answer the question of accountability or responsibility. No witnesses named to testify or granted immunity. There is a complaint against Desai filed by the Nevada Board of Medical Examiners (BME) on April 25, 2008, which has not been heard due to numerous continuances. (A hearing is set for February 22-25.)

What are the actual acts Desai and others at the ECSN are alleged to have committed? "Certified registered nurse anesthetists (CRNAs) were observed reusing syringes on one patient, reusing propofol vials for multiple patients, reported being directed to do so, and reported routinely doing so," according to the SNHD final report of December 21, 2009.

The Board of Medical Examiners complaint says that Desai "knew, or should have known, of the unsafe practices and policies at ECSN, both as a physician at, and principle [sic] owner of, ECSN, which placed Patient A's health and safety at risk. Respondent failed to use the reasonable care, skill, or knowledge ordinarily used under similar circumstances when he performed a colonoscopy on Patient A, knowing, or being in a position to have known, that the unsafe practices and policies at ECSN could put Patient A's health and safety at risk. … Respondent violated the trust of Patient A and exploited the physician-patient relationship for financial gain ... knowing, or being in a position that he should have known, of the unsafe practices at the facility that could put the health and safety of Patient A at risk …"

Shortly after the news broke, the city of Las Vegas suspended the business licenses of Desai's two endoscopy centers.

In all, more than 110 chronic cases of hepatitis C have been allegedly linked to two endoscopy centers in which Desai had a major financial interest; 63,000 may have been exposed to HIV, hepatitis B and C.

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The lid is tight on this case. until recently, the Metro officers investigating the case against Desai, and the district attorneys who will prosecute it, were incommunicado. It took 12 days to arrange an interview with someone from Metro. At last, Lt. Dave Logue of the criminal intelligence section said, "We are still pursuing criminal charges. We are coordinating with the district attorney's office. We are in the process of interviewing several witnesses and examining the voluminous pieces of evidence we collected." When asked about the statute of limitations, the maximum length of time after a crime is committed that legal proceedings may be brought, Logue said, "We are well within the time frame for us. This is not a concern for us. The shortest is four years total. We are fairly close, within several months of submitting a final report to the DA's office." He said this case is unique. "No one ever prosecuted this." Logue noted that one detective and one analyst are dedicated to this case full-time.

Herein lies the rub: It is of great concern to those tens of thousands of patients and their family members. If, as Logue said, the statute of limitations is four years (others in the district attorney's office say three years, depending on the charge) then nearly two years have already passed. There is no time for those who have been waiting. Is "still investigating" an adequate answer after 22 months?

Finally, the case was submitted to the district attorney. On December 3, District Attorney David Roger said, "Police detectives ... submitted their file to us within the last couple weeks. It is voluminous. Our prosecutors, Scott Mitchell and Michael Staudaher, will be reviewing the material. I am sure that the public will be informed of the charges sometime after the first of the year. One of the charges suggested is patient neglect. The investigation will be ongoing until a verdict."

Is Desai being charged? Roger would only say: "I don't identify targets until they are charged. They would be people who worked with or at the clinic."

That same day lead prosecutor Scott Mitchell said that the amount of supporting material delivered had to be wheeled in on a dolly. "We scanned over 8,600 pages; they interviewed and got statements from over 100 people." Asked how much the two boxes of material weighed, Mitchell went over and lifted both boxes, saying, "Approximately 25 inches long by one foot deep, together over 100 pounds."

While his main focus is on reading the file, Mitchell said, "It is intimidating enough. I haven't started reviewing it.

"We plan on going to the grand jury, which is a secret proceeding; nobody knows who is being taken to the grand jury. The identity is secret until the grand jury returns an indictment," Mitchell said.

Again time is of the essence and comes to the forefront. If one of the charges is of criminal allegations of medical negligence (NRS 200.495), which is a B felony with a possible sentence of one to six years prison time, the statute of limitations is three years and started running when the first individual was confirmed with hepatitis C, on a case-by-case basis. Other possible charges remain confidential at this time.

According to Mitchell, "The case has been moved from home plate to first base." However, Mitchell will be trying another case before Desai's and will be tied up for several weeks, if not longer. With thousands of pages to read, it may take months before he and Staudaher are able to prepare this case for trial. And since this is a case of "first impression" (a legal issue that has never been decided in that court's jurisdiction), in Las Vegas, who knows how long it will take them to cross home plate?

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It's hardly surprising that Las Vegas hasn't had a case like this before. Indeed, the case may be unprecedented anywhere.

Dr. Jonathan Fielding, director of the Los Angeles County Department of Public Health, said through a spokesperson that "nothing like this has ever happened in Los Angeles County," the nation's most populous county, with 10,347,437 people.

New York City, with its approximately 8.3 million? Dr. Sharon Balter, a medical epidemiologist for the NYC Health Department's Bureau of Communicable Diseases, said, "Haven't had one of this magnitude."

Chicago's Cook County, population 5,278,738? "There has never been a large outbreak of any bloodborne pathogen (HIV, hepatitis B, C) from reuse of syringes in Chicago," said Tim Hadac, director of public information for the Chicago Department of Public Health.

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Running parallel to the criminal allegations being investigated are the Board of Medical Examiners' charges, filed 21 months ago. Douglas C. Cooper, interim executive director, said, "As has been stated in recent news accounts in Clark County, the criminal case against the Endoscopy Center has met many obstacles. There seems to be a lack of appreciation that the Board of Medical Examiners has met many of the same obstacles, and more. Administrative hearings are currently scheduled for Dr. Desai, in February, 2010; however, we cannot predict how the ongoing issues in the civil and/or criminal matters may affect the board's hearing dates."

Concurrent with these obstacles was the two-year wait for the SNHD's final report. This report—all 266 pages—released December 21, 2009, cataloged and clarified with graphics, detailed cases, clinic practices, procedures and staff, a conglomerate of issues and inferences alluding to whom or what may or may not have caused the hepatitis C outbreak in those 114 or more patients who had colonoscopies at the Southern Nevada centers.

So here's the situation, nearly two years after the allegations came to light: The SNHD released its final report, there is a complaint filed by the BME, the police sent its findings to the district attorney, two prosecutors will be reviewing it and it is early 2010.

Eddie Felix still waits for his blood reports, still hopes and worries if and when he might have an all-clear from his doctor and still wonders if anything will done in time to those involved in what he calls "the biggest greed and arrogant scam" he or anyone else has ever encountered.

"For the pennies they saved, from what I hear, they were just stupid, it was just nonsense.

"What worried me is that you can spread it and get other people sick. And now my wife, Maryann, and she wasn't even involved in it, she ... has to go in for testing, too. Now it's just waiting to see who does or who doesn't get sick from this."

— Originally published in Las Vegas Weekly