Defense supports medical exam of Desai, too

Lawyers for Dr. Dipak Desai support a prosecution motion for an independent medical evaluation of the physician charged in the valley’s hepatitis C outbreak.

In court papers this week, lead attorney Richard Wright said a July 13, 2008, stroke left Desai with a "cognitive impairment" that diminished his ability to assist his lawyers in criminal, civil and bankruptcy proceedings stemming from the 2007 outbreak. He said there is "clearly a doubt as to his competence."

But Wright told District Judge Donald Mosley, who is presiding over the criminal case, that he opposed allowing the district attorney’s office to select the physician who would conduct the evaluation.

"This court should be especially suspect of the district attorney’s attempt to meddle in this evaluation process given the prosecution’s numerous and unethical interviews with the media on the topic of Dr. Desai’s medical condition and other issues," Wright wrote.

Wright also said he opposes the prosecution’s effort to force Desai to turn over 23 years of medical records.

And he criticized prosecutors for relying on "foundationless" grand jury testimony to accuse Desai of faking the seriousness of his physical illness to avoid facing criminal charges.

In pressing the competency issue last month, Chief Deputy District Attorney Mike Staudaher charged that Desai was hiding "behind a curtain of mental and physical impairment so he can avoid facing consequences of his actions."

But in his court papers, Wright charged that Staudaher based his claims on the "uninformed" observations of one of Desai’s former partners, who testified against Desai, rather than the medical records and evaluations already in the hands of authorities.

Mosley is set to hear arguments from both sides on Wednesday and decide whether the case should be assigned temporarily to District Judge Jackie Glass, who oversees all matters involving the competency of defendants.

Desai, 60, a gastroenterologist who ran the clinics where health officials say the hepatitis C infections occurred, is facing an array of felony charges, including racketeering, insurance fraud and neglect of patients stemming from the 2007 hepatitis outbreak. Two of his former nurse anesthetists, Keith Mathahs and Ronald Lakeman, are charged with him.

The charges revolve around the cases of seven people health officials say were infected with the potentially deadly hepatitis C virus at Desai’s Endoscopy Center of Southern Nevada.

Public health investigators said the virus was spread when a nurse anesthetist during a colonoscopy would reuse a syringe to draw medication for a patient, contaminating the medication vial, which would then be used for other patients.

Contact Jeff German at jgerman@review journal.com or 702-380-8135 or read more courts coverage at lvlegalnews.com.