Two months after the origins of a hepatitis outbreak were discovered, the question lawmakers get asked the most by constituents is this: Why are the doctors who worked at the Endoscopy Center of Southern Nevada still practicing medicine?
Assembly Speaker Barbara Buckley posed the question in early March to medical regulatory officials at a legislative hearing.
Last week, other legislators ratcheted up the criticism, which culminated Friday in a letter to the governor asking that physician licenses be suspended.
Tony Clark, the executive director of the Nevada State Board of Medical Examiners, and Keith Lee, the agency's legislative counsel, told lawmakers at the hearing Monday that the board couldn't summarily suspend the physicians' licenses.
Assemblywoman Sheila Leslie, D-Reno, was stunned, suggesting the very board charged with the investigation of the physicians isn't aware of its own power.
"How can the board do its job when it doesn't know what it can do?" she asked after the hearing.
Leslie said she and other lawmakers, who hear the frustration of their constituents, have lost confidence in the medical board's ability to respond.
She and state Sen. Steven Horsford, D-Las Vegas, want all the doctors working at clinics affiliated with the Shadow Lane facility and its owner, Dr. Dipak Desai, to be suspended. They've also asked that a special counsel be appointed to do an independent investigation.
"People are scared," Leslie said. "They're telling us they want to know where these doctors are so they can protect themselves."
It may be easy for politicians to take state officials to task on an issue that resonates so deeply with the public, but Clark said gathering specific evidence against specific doctors is another matter.
"We've got three investigators on this case full time," he said.
Clark said the medical board will eventually get to the bottom of what happened, the state will be better off in the long run, and the public will end up appreciating the work it did.
Clark said Friday evening in response to the letter to Gov. Jim Gibbons that legal action would be taken this week against doctors, although he wouldn't specify what type of action and against whom.
Nevada Revised Statute 233B.127 says a physician's license can be suspended by the board if the agency finds "that public health, safety or welfare imperatively require emergency action."
A search of state records by the Review-Journal found that the board has taken such action on at least seven occasions in the last 18 years.
On Nov. 28, 2007, the board even sent out a news release about an emergency meeting held to summarily suspend a physician's medical license.
Following Monday's hearing, Clark said the board does indeed have the power to summarily suspend a physician's license.
"I may not have made it clear that you can hand out a summary suspension, but only if you have enough evidence," Clark said a day after the hearing. "We're not sure that enough evidence has been available."
About the doctors, he said, "I'm sure they're worried that their licenses could be taken away for something they didn't do. You have to remember that license represents their livelihoods. We don't know which doctors are involved yet."
Clark said board investigators were well aware of documentation that was used by the city of Las Vegas to revoke the business licenses of the Endoscopy Center's Shadow Lane clinic on Feb. 29.
In a letter written to Desai and three of his administrators that gave the grounds for the emergency business license suspension, Jim DiFiore, manager of the city's business services division, said a "tiger team" comprised of investigators from the Southern Nevada Health District, the state Bureau of Licensure and Certification and the Center for Disease Control, found that practices at the clinics "fell well below accepted medical practice."
"Specifically, you instructed your registered nurses and certified registered nurse anesthetists to reuse syringes when administering anesthesia," DiFiore wrote the doctors. "In addition, you instructed them to reuse vials of medication."
DiFiore went on to say that investigators were told by nurses that they were "ordered by administrators, principally Dr. Desai, to engage in the practice in order to save money."
Clark said that although investigators from city, state and federal agencies have been willing to share information, it takes time to re-interview the individuals other agencies contacted.
"We just can't go on what other investigations have found in order to hand out a summary suspension," Clark said. "If we did that, we would be basing the suspension on hearsay. We need to talk to the people ourselves. We need to have all our evidence together."
In the city's business license revocation letter, the only physicians mentioned are those to whom the letter was addressed: Desai and Drs. Eladio Carrera, Vishvinder Sharma and Clifford Carrol.
Clark said he wouldn't be at all surprised if physicians "say they never saw what happened, that they say they weren't around. It's very possible."
To this point, the only action that the public has seen the board take is exact a promise from Desai not to practice medicine in Nevada.
No emergency medical board meeting has ever been called to address the crisis.
"It wasn't necessary," Clark said, stressing that even though its in new territory, the board knows how to handle the situation.
Once the investigation is complete, Clark said, the public will be impressed that the board could be both thorough and protective of physicians' due process.
Summary suspensions, which are first recommended by an investigative committee and then approved by a majority of the board, should only be handed out if there is overwhelming evidence to later sustain a permanent revocation, he said.
And if disciplinary action is warranted, the response will be proper, he said.
"I think we've been doing an excellent job in our investigation. Our sole purpose is to protect the public. We work on behalf of them every day."
No 'sense of urgency'
Some lawmakers don't share Clark's evaluation of the board, which consists of six physicians and three members representing the public. All are gubernatorial appointees.
"The board has not shown a sense of urgency in dealing with what could be the biggest health care crisis in the nation's history," Leslie said. "It appears that they are more interested in protecting doctors."
Horsford was equally blunt: "It appears that the board does not want to protect the public."
If Dr. Lawrence Sands, chief of the Southern Nevada Health District, gets his way, authorities won't have to wait on the medical board to take action.
At Monday's hearing, Sands proposed the authority of local health districts be expanded to include the ability of the chief health officer to issue a "cease and desist order" to facilities or medical care providers when no other agency has specific authority, or when an agency defers action. "These look like excellent recommendations," Leslie told Sands.
Lawmakers are using the input at the hearings to decide what steps might be taken by the next Legislature to better protect public health.
Dr. Sidney Wolfe of Public Citizen, an advocacy group begun by Ralph Nader, has long argued that the Nevada medical board engages in "lax discipline of doctors." Wolfe said last week that the Nevada medical board "is paralyzing itself into not taking action."
"There has been more than enough evidence for an emergency suspension," Wolfe said. "If you had to have all your evidence together at the outset, then you would just revoke a license, not suspend it. You have an investigation to determine whether it should be a permanent revocation."
Buckley, D-Las Vegas, can't believe that suspensions can't be handed down.
"If we can't get summary suspensions after what's happened here, when can we?" she said.
Clark said "allegation letters" were sent out about two weeks ago to all the doctors associated with Desai's clinics. They were asked to provide responses within a couple weeks. He said the allegation letters contained questions about physician roles at the clinics "that the doctor's lawyers apparently don't want them to answer."
"They're not really answering the questions," he said of the physician response letters.
Soon, Clark said, another letter will be sent from the board's investigating committee. This time, physicians must answer within five days.
If they don't, Clark said, the board could take disciplinary action, including suspending a physician's license. He said he is sure that if the doctors answer truthfully, some of them could end up with revoked licenses.
Why did the board wait until two weeks ago to try and formally make contact with the physicians?
"I can't answer that," Clark said. "I don't know why. I did try and talk to the doctors' lawyers about them volunteering not to practice," as Desai did. "But that didn't work out."
According to Clark, board president Dr. Javaid Anwar, a longtime friend and business associate of Desai, came to the conclusion that there wasn't enough evidence to summarily suspend Desai's license.
"He (Anwar) came up with the idea of asking him (Desai) to volunteer not to practice and asked me to carry out the negotiations," Clark said.
The board was not notified beforehand of Anwar's idea, Clark said, adding that such an action is legal.
Anwar, who did consulting work for Desai last year, has not returned calls since March 6, the day before the nonbinding promise he and Clark brokered with Desai was announced.
In published reports, Anwar has said that he followed the advice of Christine Guerci, chief deputy attorney general, in securing the promise.
In an April 3 written response to e-mailed questions from the Review-Journal, Guerci said her involvement "was limited to obtaining a written confirmation of the voluntary agreement from Abe Vigil, Dr. Desai's attorney."
The agreement allows Desai to keep his license, leaving the door open for him to practice elsewhere. "But he is a danger to no one in Nevada, because he is not practicing," Clark said.
He acknowledged that Desai can start practicing again in Nevada whenever he wants.
If Desai's license had been suspended, that wouldn't be the case. Suspension information would have been entered in the National Practitioner Data Bank and available to health care organizations and licensing agencies in every state.
"The data bank is there to protect people from bad physicians simply going from state to state," Wolfe said.
Leslie said she is appalled by the board's agreement with Desai, who served on the medical board from 1993 to 2001.
"I think the public was clearly not satisfied with the promise the board extracted from Dr. Desai to stop practicing while the investigation is under way," Leslie said.
"It sounds more like a grand concession or gesture on his part, rather than the board carrying out its duty to protect the public. It seems that the board had to be pushed by the public's outrage to even go that far, further eroding confidence in their ability or motivation to hold the doctors accountable."
Leslie says the state's nursing board has acted more responsibly during the crisis.
So far, six nurse anesthetists who worked at the Shadow Lane facility have surrendered their licenses.
Debra Scott, executive director of the state Board of Nursing, said the regulatory body has interviewed about 20 other registered nurses and licensed vocational nurses who worked at Desai's clinics.
Effects of suspension
Clark has voiced concerns about what a summary suspension can do to a physician's career.
When such a report is made to the National Practitioner Data Bank, he said, it stays as a "black mark" against a physician for a lifetime, often ensuring that health care organizations won't hire the individual.
But David Bowman, a spokesman for the Health Resources and Services Administration, which oversees the data bank, said it is not uncommon for a report to be voided if an investigation of a physician finds there is no malpractice involved.
If there is just slight culpability in a situation, he said, the report to the data bank is often amended.
When Clark was told of Bowman's remarks, he was surprised. "I didn't know that," he said. Clark also said there is a concern physicians who are suspended from practicing medicine could sue if the board's action is not sustained at a later revocation hearing.
He acknowledged the board has immunity under the law from such complaints.
But, Clark said, "people can still name you in a suit, and it really bothers you," adding that the state does carry some funds to pay off "nuisance" suits.
Overall, Clark believes his agency will be able to do a better job in the future, because whenever a health care investigation is initiated by the state, the appropriate oversight board immediately will be contacted.
"That will give us a leg up," he said, adding that the medical board didn't learn of the outbreak investigation until the Feb. 27 news conference. "It gave too many people the opportunity to get lawyered up," he said.
Contact reporter Paul Harasim at pharasim @reviewjournal.com or 702-387-2908. Contact reporter Annette Wells at awells @reviewjournal.com or 702-383-0283.