Sam Morris / Las Vegas Sun
Published Friday, June 11, 2010 | 9:37 a.m.
Updated Friday, June 11, 2010 | 12:40 p.m.
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It will be nine months, possibly longer, before one of the key figures in the hepatitis C scare that affected some 50,000 Las Vegas alley residents goes to trial.
And during that time, prosecutors hope to clear up whether Dr. Dipak Desai, 60, is mentally and physically able to go through the expected five-week trial, which will begin March 14, 2011, in Clark County District Court.
Desai, who ran the Endoscopy Center of Southern Nevada, and two of his nurse anaesthetists, Keith H. Mathahs and Ronald E. Lakeman, were indicted by a grand jury recently on 28 criminal counts related to the 2007-2008 hepatitis outbreak.
The felony charges include racketeering, performance of an act in reckless disregard of persons or property, criminal neglect of patients, insurance fraud, theft and obtaining money under false pretenses.
Desai, who has posted $1 million bail, wore a dark suit as he was escorted to the defendant's table Friday morning by his attorney, Richard Wright. Wright held onto Desai's upper left arm, steering him into position.
When District Judge Donald Mosley asked Desai questions, Wright spoke for him. When Mosley asked if he could read and write English, Wright said, "He did your honor. He has some cognitive impairment from a stroke in July 2008."
However, Wright said Desai understood the 28 charges and pleaded not guilty.
One of Desai's co-defendants, Mathahs, who is in custody on $500,000 bail, stood in a jail uniform at the defendant's table. Mathahs spoke for himself, telling the judge he understood the 28 charges and plead not guilty to them.
Michael Staudaher, chief deputy district attorney, told the judge that Ronald Ernest Lakeman, 63, was arrested Tuesday night in Columbus, Ga., and was to be en route back to Las Vegas.
Staudaher said it was unclear whether Lakeman would make it back to Las Vegas by Monday, when he is scheduled for his initial appearance. Lakeman's attorney is Frederick Santacroce.
Staudaher told the judge it would take prosecutors three weeks to present their case against the three defendants. Mathahs' attorney, Marc Saggese, and Wright said they had their own experts to bring to the stand, so they estimated that it could take five weeks for the trial.
Mosley said finding a five-week vacancy in his calendar was difficult because he puts priority on trials having to do with murder or sexual assault, so March 14 was the earliest date he could block out for the trial.
The status check for discovery was set for 9 a.m. Jan. 19, a calendar call was set for 9 a.m. March 7, and the jury trial for 1:30 p.m. March 14.
Bail reduction denied for Mathahs
Judge Elissa Caddish had set the $500,000 bail for both Mathahs and Lakeman. Saggese argued that Mathahs had no intention of avoiding the trial and was not a flight risk and that he be released on his own recognizance so he could participate in his defense.
However, Staudaher said it was necessary for Mathahs and Lakeman because of the number of felony charges against them and "we believe they are a flight risk."
Staudaher explained the bail of $1 million for Desai. Prosecutors had hoped it would be for much higher than that because of Desai's ability to get large amounts of money, "as was evidenced he was able to come up with $1 million over the weekend," Staudaher said.
"Part of what the state wanted to do with that was to get information from Mr. Wright as to the source of the funds," Staudaher said. "Mr. Wright provided that information to the state. Police are currently looking into the source of those funds."
Staudaher said the state knows the funds came from a wire transfer from New York, but they are still trying to determine the source.
"So there are still issues pertaining to Dr. Desai, but as far as Mathahs and Lakeman are concerned, they are still considered a flight risk because of what they are facing," Staudaher said.
Mosley denied reducing Mathah's bail, at least for now. He told Saggese to feel free later to renew the motion for reduced bail, along with Lakeman's expected motion to reduce bail.
Desai's health at issue
Staudaher told the judge that the defense is raising the issue of Desai's health, so prosecutors would like to get the matter cleared up before the trial starts.
"There may be some physical and/or mental impairment of Dr. Desai," Staudaher said. "To that end, the issue of competency potential has been raised to this court. This is not something the state would like to litigate down the road."
Staudaher asked if the court would allow the state to obtain copies of Desai's medical records back to 1987 and to have Desai undergo a medical examination to make sure he is competent to stand trial.
"The state is concerned there is an issue of legitimacy of whether or not there is a real medical and or mental issue here and we would like this addressed. We think this is paramount it is addressed early," Staudaher said.
Wright told Mosley he would be filing a motion about Desai's ability to assist his lawyers because of his cognitive impairment.
"I will be filing motions within several months because evaluations are still ongoing," Wright said. The stroke took place in July 2008 and they are getting updates on Desai's "diminished capacity," Wright said.
Mosley said because of the amount of time it might take to clear up that issue, the March 14 trial date could be set back.
Wright also asked that Staudaher's request for medical records be put in writing.
"They have, in my opinion, unlawfully acquired, although I don't know how it was acquired, medical records of Dr. Desai in violation of HIPPA (Health Insurance Portability and Accountability Act), and then commented publicly ... regarding those medical records," Wright said. "I am not inclined to produced anything absent me first filing a motion, putting them at issue."
Wright said he first wants to find out what records the district attorney's office already has and how they were acquired.
Mosley told attorneys, "I would be disappointed to see this case tried in the press any more than it has occurred, to whatever extent."
Besides the nine hepatitis cases linked to Desai's clinic, the Southern Nevada Health District said more than 100 other patients were infected during 2007-2008. The outbreak prompted health officials to recommend testing for hepatitis B, hepatitis C and HIV to about 50,000 patients. The Health District said patients might have been infected when nurses and other staff members reused syringes on endoscopy patients.
The Health District also notified all patients who had undergone procedures at the Endoscopy Center of Southern Nevada between March 2004 and January 2008 that they were at risk for possible exposure.
Desai, who faces several medical malpractice suites from patients who say they contracted hepatitis C at his Las Vegas clinics, has filed for Chapter 11 bankruptcy.
In February, he surrendered his state medical license after having a series of health problems, including several strokes. He had practiced medicine since 1980.