Trial begins for insurers in Vegas hep C outbreak

Insurance company blames clinic owner

By Ken Ritter
Associated Press

LAS VEGAS (AP) — A Nevada jury is being asked to hold the state’s largest health management company responsible for up to $1 billion in damages for sending two women to an outpatient medical clinic owned by a once-prominent Las Vegas physician where they contracted incurable hepatitis C in 2005.

With plaintiffs Helen Meyer, 76, and Bonnie Brunson, 70, sitting behind him, attorney Robert Eglet opened a civil trial Wednesday alleging that Health Plan of Nevada disregarded evidence including a dossier compiled by another Las Vegas gastroenterologist that clinic owner Dr. Dipak Desai was endangering patients at his endoscopy clinics.

A “reasonable and responsible” HMO wouldn’t send patients to a doctor that it knows is “cutting costs in a manner that jeopardizes the health and safety of its insured members,” Eglet told the jury.

“The most important concern should be the health and safety of its insured members.”

Instead, he alleged that as Health Plan of Nevada grew to claim 82 percent of the HMO market in and around Las Vegas, it signed a low-bid contract with Desai to provide endoscopic procedures including colonoscopies to patients who were administered general anesthesia but were sent home the same day.

Desai isn’t named in the civil lawsuit and wasn’t in the courtroom to hear himself described as a mistake-prone physician who instructed clinic employees to rush patient care and save money by reusing medical instruments, paper aprons and latex gloves.

Attorneys for Health Plan of Nevada argue that Desai is the one responsible for the hepatitis outbreak that became public when the Southern Nevada Health District notified more than 50,000 patients in early 2008 to get tested for bloodborne diseases including hepatitis and AIDS.

Local and federal health investigators later concluded that nine people contracted hepatitis C at Desai clinics, including Meyer and Brunson. Hepatitis C was found in another 105 patients, but the cases were not conclusively linked to Desai clinics.

“They ought to be going after Desai,” defense attorney Larry Scarborough said outside the courtroom. He called the lawsuit an attempt to exploit a jury’s sympathy to hold a deep-pocketed corporation unfairly liable for actions it could not control.

The defense was starting its opening statements Wednesday afternoon after jurors heard from Eglet and Meyer’s attorney, Will Kemp.

Eglet and Kemp plan to ask the jury to waive a Nevada medical liability cap of $350,000 and award the plaintiffs $10 million each in compensatory damages and up to $1 billion in punitive damages.

Desai, 63, a former member of the state Board of Medical Examiners, faces trial in state court in April and federal court in May on separate criminal charges stemming from the outbreak. He has denied wrongdoing, declared bankruptcy and surrendered his medical license, while his lawyers have waged a yearslong fight to prove that he is so incapacitated by strokes and other physical ailments that he is unfit for trial.

State prosecutors accuse Desai of faking his medical conditions in an attempt to escape prosecution.

In 2011, Eglet and Kemp won hundreds of millions of dollars in civil judgments against pharmaceutical companies they blamed for supplying recklessly large 50 milliliter vials of the powerful anesthetic propofol to Desai clinics where 10 or 20 milliliter doses were commonly needed for outpatient colonoscopy procedures.
Desai and his clinics reached undisclosed settlements with plaintiffs before trial in those cases.

The Health Plan of Nevada case is expected to take at least six weeks before Clark County District Judge Timothy Williams.

On Wednesday, Eglet told the jurors that while the medical industry standard for a colonoscopy procedure was 20 minutes to an hour, Desai hurried his staff to treat enough patients to bill the insurance company for up to 60 procedures in a nine-hour day.

The plaintiffs’ lawyer said that by 2005, the same year Meyer and Brunson were infected, Desai cut colonoscopy procedure times to three to 15 minutes per patient.

“Patient turnover was the priority,” Eglet said. “Not patient safety. Not quality of care. Not making sure patient diagnosis is correct.”