Desai can face charges


The central figure of an investigation into the hepatitis C outbreak might have been impaired by a stroke a year ago, but he is competent enough to face medical malpractice charges, according to the state Board of Medical Examiners.

Based on results from an examination performed by Dr. Thomas Kinsora, a clinical neuropsychologist, Dr. Dipak Desai is "borderline" in regards to his ability to assist defense attorneys in his medical board licensing hearing.

But, according to Kinsora's findings, Desai "is clearly aware of the charges against him, has a good knowledge of the facts of the case and understanding the role of all the key players in the judicial system."

Health officials have linked two of Desai's now-shuttered endoscopy clinics to nine contracted cases of hepatitis C. An additional 105 cases have been characterized as possibly related to the clinics.

Examinations conducted by Kinsora earlier this year indicated that the residual effects of Desai's stroke would make it difficult for him to assist his defense team with the case. But after further tests, Kinsora reported that Desai might be impaired but not to the point of being "unable to assist counsel."

His findings were detailed Tuesday in an order by board hearing officer Patrick Dolan.

Dolan's ruling means hearings regarding disciplinary action by the board can move forward.

Louis Ling, the board's executive director, said Tuesday a hearing will not be scheduled until fall and probably would take place early next year.

Desai also faces a civil lawsuit filed by patients infected with hepatitis C.

The medical board's ruling should have no effect on those proceedings because Desai was expected to invoke his Fifth Amendment rights in the civil proceedings, said attorney Will Kemp, who represents Desai's former patients.

"He would have taken his Fifth Amendment rights or, if he was unable to, his attorney would have to come in and pled the Fifth for him," Kemp said.

Desai's attorney, Richard Wright, declined to comment.

Desai also could face criminal charges related to the outbreak, which health official say resulted when reused syringes contaminated medical vials used to treat patients.

In early 2008, some 50,000 patients of the clinics received notices saying they could have been exposed to hepatitis, HIV or other blood-borne diseases.

The clinics filed for Chapter 7 bankruptcy last week, raising further questions about whether the civil litigation would proceed.

Bankruptcies automatically postpone any lawsuits involving the clinics until a bankruptcy judge lifts the postponement. A bankruptcy hearing is scheduled for Aug. 19.

Desai suffered the stroke in July 2008.

Dolan's order said that, according to Kinsora, current treatment of Desai "may improve his ability to assist legal counsel, but will in all likelihood not significantly improve over time."

Although a "sound argument can be made either way," Kinsora's findings state, Desai is "likely acceptably competent, but certainly not optimally competent."

Though Kinsora in April opined that Desai would have difficulty assisting in his defense, he noted that he would like to have access to additional medical records, including current imaging of Desai's brain and radiological tests.

Kinsora also had recommended Desai be referred to a clinical psychologist and a speech and language pathologist for evaluation.

"The question at issue was whether Dr. Desai's medical conditions were debilitating," Ling said. "We needed to know that before we tried the case.

"The process worked. We are glad we will now be able to proceed with the hearing against Dr. Desai," he said.

Contact reporter Adrienne Packer at apacker@reviewjournal.com or 702-384-8710.

 

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