A lawyer accused Dr. Dipak Desai of exaggerating his ill health to duck legal problems long before prosecutors raised the issue last month in his criminal case.
Attorney Dan Carvalho suggested in March 2008 court papers that Desai was not being honest about claims that his medical condition would allow him to answer questions at a deposition for only an hour. The deposition was part of a malpractice lawsuit Carvalho filed against Desai's Endoscopy Center of Southern Nevada that was unrelated to the hepatitis C outbreak there months earlier.
Carvalho sought to force Desai to complete the deposition after the physician's lawyers cut it short, but the case was settled for $2 million before a hearing could be held.
Kevin Rexford had sued the clinic and one of Desai's former partners, Dr. Clifford Carrol, and alleged a failure to discover during a January 2005 colonoscopy that Rexford had colon cancer. Carrol found the cancer during a second procedure a year later, but by that time, it was in an advanced stage, the lawsuit alleged. Rexford died in September 2009.
Desai acknowledged in the 2008 deposition that while a stroke had left him too stressed to answer questions for more than an hour, he was back doing high-pressure surgery at the clinic.
"It is difficult to comprehend that he can perform multiple endoscopic surgical procedures upon patients under anesthesia with the risk of death, perforation and other complications, but cannot answer questions for longer than a self-imposed 60-minute time limit," Carvalho said in his court papers.
"To date, he has produced nothing from any medical care provider indicating that there is any rational basis for a time limit on his deposition."
The deposition took place on Feb. 12, 2008, roughly two weeks before health officials publicly disclosed the 2007 hepatitis outbreak at Desai's clinics.
The 60-year-old gastroenterologist was indicted June 3 on several felony charges, including racketeering, insurance fraud and neglect of patients, as a result of the outbreak. Two of his former nurse anesthetists, Keith Mathahs and Ronald Lakeman, also were charged.
Last month, prosecutors accused Desai of faking his health problems to avoid being tried in the criminal case. They called for an independent medical evaluation of Desai to determine whether he is competent to assist his lawyers.
Desai's criminal attorneys support an independent evaluation, and District Judge Donald Mosley has set a hearing on the subject on Wednesday.
In his court papers, Carvalho said one of Desai's civil lawyers in 2008 told him that because of a stroke in late 2007, Desai couldn't be "placed under undue stress, such as a deposition, for any extended period of time."
Early in the deposition, Desai himself referred to his health problems, according to the transcripts.
"Because of my ill health, you may not be able to follow me, but try very hard to follow me," Desai told Carvalho.
But Carvalho told the Las Vegas Review-Journal that Desai appeared mentally sharp during the deposition, and the transcripts show he often sparred verbally with the lawyer over whether he kept quality controls in place to make sure physicians performed surgeries at a high level.
In June, Chief Deputy District Attorney Mike Staudaher charged in a motion that Desai used the stroke as an excuse to avoid facing the media at a Feb. 27, 2008, news conference on the hepatitis outbreak. Desai left another partner, Dr. Eladio Carrera, to face reporters alone, saying his cardiologist wouldn't allow him to read the statement, Staudaher wrote.
The prosecutor quoted Carrera as telling a grand jury earlier this year that Desai "was being disingenuous" and that he looked "hale and hardy" at the time of the news conference.
Carrol told the grand jury that Desai returned to running the clinic two weeks after the stroke and did not appear to have "any difficulty speaking, recognizing objects or understanding conversation."
Prosecutors gave Carrera and Carrol immunity to testify against Desai.
Desai's lawyers said in court papers this week that a subsequent July 2008 stroke left him with a "cognitive impairment" that diminished his ability to assist them.
The criminal 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 vial, which would then be used for other patients.
Contact Jeff German at jgerman@reviewjournal. com or 702-380-8135 or read more courts coverage at lvlegalnews.com.