Time to move Desai case forward
District Judge Kathleen Delaney did the right thing last week, issuing a four-page decision in which she found former Las Vegas physician Dipak Desai competent to stand trial on criminal charges stemming from a 2007 hepatitis C outbreak.
Unsanitary procedures in Desai’s colonscopy mill resulted in the largest public health notification on record: Patients had been exposed to potentially fatal infectious disease. At least one former patient is reported to be dying.
Desai, 62, and two of his nurse anesthetists, Keith Mathahs and Ronald Lakeman, are facing felony charges including racketeering, insurance fraud and neglect of patients.
Judge Delaney ordered the case returned to District Judge Donald Mosley for a March 12 trial.
At a hearing before Judge Delaney last week, prosecutors presented witnesses who said Desai was exaggerating his physical impairments from two strokes to obstruct the criminal case. Desai’s lead lawyer, Richard Wright, has argued that there were serious flaws in the evaluation process and that Desai remains unable to assist his defense team in the complicated criminal case.
Judge Delaney said in her decision that the “only impediment” to Desai’s competency is “self-reported memory loss” of the facts surrounding the criminal charges as a result of the strokes. “Memory loss itself, even if true, is not a bar to prosecution of an otherwise competent defendant,” she wrote. Judge Delaney said tests given Desai suggested that he was “feigning his memory deficits to a greater degree than would be expected from the neurological damage caused by his strokes.”
This is consistent with responsible courtroom witnesses who report that Desai occasionally engages in normal conversation with others as he enters the courtroom, with a normal range of facial expressions.
This case has dragged on for years. Laws that invalidate legal proceedings against a defendant who, for example, was not provided with a translator and thus could not understand or respond to the charges, are wise and humane. But allowing a defendant to escape justice by gaming the system would seriously dilute the example these proceedings could set for others who might be tempted to place profit or convenience ahead of standard sanitary measures and patient safety.
The burden of proof is still on the state to show defendants knew about and tolerated dangerous decisions and procedures. These men could still be acquitted if the state can’t meet that standard. But it’s time for this trial to proceed.