Jurors will have to decide if a former endoscopy clinic owner and employees knew they were committing a crime, or if they simply made mistakes when seven of their patients became infected with incurable hepatitis C in 2007 — including one patient who later died, defense attorneys said Tuesday.
The defense used opening statements to cast the trial of former Dr. Dipak Desai as complicated and his client as the underdog against state court prosecutors in a community shocked when health officials in February 2008 notified 63,000 former Desai patients to get tested for potentially fatal blood-borne diseases.
"Set aside the publicity. Set aside the mass hysteria," defense attorney Frederick Santacroce said during opening statements as he pleaded for a fair and impartial trial for his client, former nurse-anesthetist Ronald Lakeman, and former clinic owner Dipak Desai.
"You are going to be the truth-finders," Santacroce told the jury seated Monday for a criminal trial expected to take six weeks or more. "You are going to have to be independent and strong and listen to all the evidence."
Desai attorney Richard Wright used his opening statements to cast the case as complicated and Desai as the underdog in community shocked when health officials in February 2008 notified 63,000 former Desai patients to get tested for potentially fatal blood-borne diseases.
Just reading the indictment on Monday against the two men took 90 minutes, and Wright on Tuesday told the jury that prosecutors wouldn't be able to prove the case beyond a reasonable doubt.
Prosecutor Michael Staudaher told jurors Monday that greed was the motive for the crimes, and reusing contaminated anesthetic was just one of several ways Desai pinched pennies at clinics where patients were rushed through like cattle.
Wright described Desai and employees at Desai's three busy Las Vegas clinics — the Endoscopy Center of Nevada, Gastroenterology Center of Nevada and Desert Shadow Endoscopy Center — as cooperative when health investigators arrived in late 2007 to try to pinpoint the source of the community hepatitis C cluster.
Desai, a former prominent Las Vegas gastroenterologist and state medical board member, didn't want to shut his clinics down without evidence that they were the source of the community outbreak, his lawyer said, so practitioners willingly let investigators from the Southern Nevada Health District and the federal Centers for Disease Control in Atlanta come in and watch what they were doing.
"Did they perceive they were knowingly, consciously doing something wrong?" Wright asked. "I think the evidence is going to be such that every single one of those employees, every practitioner in there, did not know they were engaging in risky behavior when they did what they did."
Health investigators reported genetically linking hepatitis C infections of nine people to procedures conducted in 2007 at Desai clinics. Authorities said that although hepatitis C was found in another 105 patients, the cases weren't conclusively linked. The outbreak was blamed on unsafe clinic practices on two dates in 2007, and the reuse of large vials of the anesthetic propofol contaminated during reuse between patients.
Insurance companies were billed for more time than procedures took, syringes and disposable equipment were also reused, and Desai even ordered employees to limit the amount of lubricant used on patients during colonoscopies and endoscopies, Staudaher said.
Desai and Lakeman have each pleaded not guilty to 28 charges, including criminal neglect of patients, reckless disregard of persons, theft, obtaining money under false pretenses, insurance fraud and murder. If convicted, each spend the rest of his life in prison.
The murder charge was added last year after infected former patient Rodolfo Meana died in the Philippines at age 77.
A former co-defendant, Keith Mathahs, 77, pleaded guilty last December to five felony charges including criminal neglect of patients resulting in death, insurance fraud and racketeering in a plea deal that will have him testify against Desai and Lakeman. Mathahs could get probation or up to 72 months in state prison at sentencing.
Santacroce said that while prosecutors can show Desai and Mathahs treated Meana, Lakeman never did.
Wright never referred during his opening statement to strokes and other physical ailments that he maintains so incapacitate Desai that he can't assist in his defense. Desai has also declared bankruptcy and surrendered his medical license.
Desai, 63, walks in and out of the courtroom with his wife and family members, and sits silently at the defense table staring straight ahead during proceedings.
The hepatitis outbreak at his clinics also spawned hundreds of separate civil negligence lawsuits including one that led a jury in Las Vegas to order the state's largest health management organization to pay $500 million in punitive damages to three plaintiffs.
In 2011, juries also awarded hundreds of millions of dollars in civil judgments against pharmaceutical companies that plaintiffs blamed for supplying large vials of propofol to Desai clinics.