Desai ordered to mental facility; March trial postponed
District Judge Jackie Glass on Tuesday ordered Dr. Dipak Desai, the central figure in the 2007 Las Vegas hepatitis C outbreak, to surrender March 17 to be taken to a state mental facility for further evaluation.
During a brief hearing, Glass disclosed that two court-appointed medical experts from Las Vegas — psychologist Shera D. Bradley and psychiatrist Dr. Michael S. Krelstein — had found Desai incompetent to stand trial on criminal charges in light of two strokes in recent years.
Glass said state law mandates Desai be sent in custody to Lakes Crossing in Sparks, the state’s mental health hospital. His March 14 trial before District Judge Donald Mosley was postponed indefinitely.
Glass said that the next round of evaluation would take some time and that both prosecutors and defense lawyers probably would raise issues involving Desai’s competency that would end up back in her court.
"We have a ways to go with this process, and we’re going to let it go forward like we would any other case in this jurisdiction," Glass said.
In March, Desai will undergo several days of medical tests before going to Lakes Crossing. There, he will be evaluated by three physicians who will determine whether his competency can be established or restored.
Determining whether Desai can ever assist his lawyers at trial could take more than a year. If Desai is deemed incompetent with no possibility of recovery, state law requires charges be dismissed.
Desai, 60, who appeared in court Tuesday wearing a charcoal gray suit, showed no emotion and said nothing as Glass ordered him sent to the state hospital. Glass instructed Desai not to leave Las Vegas while he remains free over the next five weeks.
The gastroenterologist, who gave up his medical license after news of the outbreak, faces several felony charges, including racketeering, insurance fraud and neglect of patients.
Two of his former nurse anesthetists, Keith Mathahs and Ronald Lakeman, also are charged in the case. Their trials could still take place next month. Defense lawyer Michael Cristalli previously has filed court papers seeking to have Mathahs tried separately from Desai. Mosley has yet to rule on that subject.
The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai’s Endoscopy Center of Southern Nevada. Hundreds of former patients might have been exposed at the clinic.
The criminal investigation, which began shortly after health officials disclosed the hepatitis C outbreak in February 2008, was one of the largest by Las Vegas police.
Desai came under scrutiny after the Southern Nevada Health District linked cases of hepatitis C to the Endoscopy Center. Officials notified 40,000 former clinic patients about possible exposure to blood-borne diseases because of unsafe injection practices. More notifications followed for patients of a sister clinic, Desert Shadow Endoscopy Center.
As many as 250 former clinic patients infected with hepatitis have filed medical malpractice lawsuits. Thousands more have sued over the stress of having to be tested for hepatitis C.
Local health officials said the outbreak was caused by nurse anesthetists reusing vials of the sedative propofol that were contaminated by syringes used on patients with hepatitis C.
Glass ordered the medical evaluations of Desai in September. His attorney, Richard Wright, turned over medical records covering strokes Desai suffered in 2007 and 2008. Wright contended that a July 2008 stroke left Desai with a "cognitive impairment" that diminishes his ability to aid his lawyers.
But prosecutors challenged that claim.
Chief Deputy District Attorney Mike Staudaher filed court papers accusing Desai of hiding "behind a curtain of mental and physical impairment" to avoid facing the consequences of his actions.
Both Wright and Staudaher declined to comment after Tuesday’s hearing.
A stroke occurs when a blood vessel bringing oxygen and blood to the brain ruptures or gets blocked, and brain cells do not get the flow of blood they need.
How a stroke patient is affected depends on where the stroke occurs in the brain and how severely the brain is damaged, Las Vegas neurologist Dr. Morton I. Hyson said in an interview.
"If it affects the part of the brain that affects cognition, it can affect his ability to concentrate, to think straight," he said.
Hyson said that when brain cells die during a stroke, abilities such as speech, memory or movement controlled by that area of the brain are lost.
At Tuesday’s hearing, Desai walked stiffly but easily into the courtroom. At one point, when Wright left the courtroom to speak with the judge and prosecutors in chambers, Desai asked a marshal whether it was OK to sit down. When he was told that it was, Desai nodded and sat at the defense table.
Hyson said that because he hasn’t worked with Desai or seen brain imaging exams conducted for his evaluation, it is impossible for him to know what Desai’s impairment could be.
Brain scans can detect which portion of the brain is injured.
"MRIs (magnetic resonance imaging) of the brain can’t be faked," Hyson said. "You can tell whether there has been a stroke."
What you can’t tell, however, is how affected an individual is by the stroke, he said. Tests that measure, among other things, facility in speech, memory and movement are needed, he said.
"It is possible that the answers to those tests can be faked," Hyson said, noting that a doctor might be better able to do so than most people.
Some people suffer little lasting damage from a stroke, Hyson said, though the radiologist’s report shows that a stroke occurred. In most cases, he said, rehabilitation is most effective if done within one year.
Thomas Kinsora, a neuropsychologist who in 2009 evaluated Desai for the Nevada State Medical Board, argues that scientific studies have demonstrated the validity of tests to detect deliberate faking.
"Those who say that one might easily fake a well-constructed neuropsychological battery of tests are simply wrong," Kinsora said in 2009.
Kinsora told the medical board that residual effects of a stroke Desai suffered in July 2008 — his second — would make it difficult for him to assist in defending against malpractice allegations.
Desai’s associates say his first stroke, suffered in 2007 while in India, was minor and left no residual effects.
That first stroke delayed a malpractice lawsuit against Desai’s clinic and staff Dr. Clifford Carrol. Legal documents show that a November 2007 deposition was canceled because of it.
In January 2008, Desai’s attorney Cheryl Horner told the plaintiffs that the stroke had left the physician too stressed to answer questions for more than an hour. But in the shortened deposition the following month, Desai acknowledged under oath that the stroke had not prevented him from returning to high-pressure surgery at the clinic.
Plaintiffs’ attorney Dan Carvalho later filed court papers questioning Desai’s medical claims and seeking to force him to complete the deposition. But the case was settled for $2 million before a judge could rule on the matter.
Contact Jeff German at jgerman@reviewjournal.com and reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.
