March trial for Desai may be postponed again
Dr. Dipak Desai may have been found competent to face criminal charges in the hepatitis C outbreak, but his upcoming March 12 trial is expected to be delayed again.
Lawyers on both sides of the massive criminal case do not want to talk publicly about the delay, but privately they appear in agreement that the trial is not likely to go on March 12.
For starters, District Judge Donald Mosley, who has presided over the case since the indictment of Desai and two of his nurse anesthetists 18 months ago, is said to be retiring this month after nearly 30 years on the bench.
Mosley has refused to publicly give his date of retirement, but his staff has told people at the Regional Justice Center that he expects to step down by month’s end, two weeks shy of the trial date.
“It’s my understanding that the judge is leaving at the end of the month after a long and successful career,” said defense attorney Michael Cristalli, who represents one of the nurses, Keith Mathahs.
That alone is a good reason to delay the case, courthouse sources said. A new judge is likely to need more than two weeks to get familiar with a case that was the result of one of the biggest investigations ever undertaken by Las Vegas police.
Desai, 62, Mathahs, 75, and another nurse anesthetist, Ronald Lakeman, 64, are facing 28 felony charges, including racketeering, insurance fraud and neglect of patients. The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai’s clinics.
Cristalli estimates that there are a million or more pages of documents in the case, and he said defense lawyers are still seeking more documents.
“We have not finished processing or receiving all of the documents associated with this case,” Cristalli said.
The flow of paperwork is giving defense lawyers another reason to put off the upcoming trial.
Prosecutors think they have turned over all of the documents related to the massive criminal investigation and everything they received from prosecutors in Desai’s federal case.
Desai is to be tried in federal court on May 22 with Tonya Rushing, his clinic manager, on one count of conspiracy and 25 counts of health care fraud.
A federal indictment alleged that the pair carried out a scheme from January 2005 through February 2008 to inflate the length of medical procedures and overbill health insurance companies.
Federal prosecutors have indicated they probably would wait to try their case until after the state trial, which means the federal trial also is likely to be delayed. The issue of Desai’s competency to assist his lawyers hasn’t been raised yet in the federal case.
The unresolved issues regarding the discovery of evidence in the state case primarily are related to documents that have surfaced in the massive civil litigation involving Desai and his clinics.
As many as 250 former clinic patients infected with hepatitis have filed medical malpractice lawsuits, and thousands more have sued over the stress of having to be tested for hepatitis C.
Defense lawyers have been going all out to gain access to sworn depositions and other documents in those cases. They also have been fighting to obtain all of the files of the Southern Nevada Health District, which initially investigated the 2007 hepatitis C outbreak.
Desai, it turns out, has another compelling reason to put off the March 12 trial.
When Mosley transferred Desai’s case in July 2010 to the judge who handles competency matters, the criminal proceedings against Desai automatically were suspended, according to state law.
That left several issues in limbo, including Desai’s right to challenge the grand jury proceedings that led to his indictment. The case moved forward against Mathahs and Lakeman, who lost their bids to toss out the charges a year ago.
But if Desai’s lawyers now file court papers challenging the indictment, the matter isn’t likely to be decided before March 12.
The lawyers also expect to raise additional pretrial issues that will take up court time now that their client has been found competent.
At a District Court hearing last week, prosecutors presented witnesses who said Desai was “malingering” or faking his physical impairments from two strokes to obstruct the criminal case.
Three state medical experts all testified under oath that Desai was “exaggerating” the effects of the strokes.
The three experts, part of a team that evaluated Desai for six months at Lake’s Crossing, the state’s secure mental hospital in Sparks, all concluded during their testimony that Desai was competent to face a jury on the criminal charges.
District Judge Kathleen Delaney agreed this week, ordering the criminal case against Desai sent back to Mosley.
Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135.
