When a Las Vegas police request to see any complaints brought against Dr. Dipak Desai was rebuffed by the Nevada Board of Medical Examiners, a Clark County grand jury issued a subpoena compelling the board to release the documents.
Even after receiving the subpoena about two weeks ago, Tony Clark, the board's executive director, acknowledged that he did not immediately agree to allow investigators to see complaints about the physician whose clinics might have exposed more than 50,000 patients to hepatitis C, hepatitis B and HIV.
"I have to be careful to protect records that are confidential by statute," Clark said Wednesday, adding that he now has concluded that state law allows him to release otherwise confidential records to law enforcement officials investigating a possible criminal action. "I let them see what I knew was public right away."
The one complaint made public against Desai was filed in 1996. He was fined $2,500 for false advertising at the clinic.
Clark, who is also the board's acting general counsel, noted that complaints against physicians that do not result in disciplinary action are generally confidential.
But Deputy District Attorney Scott Mitchell, one of the prosecutors handling the Desai case, said that state law allows records to be turned over for a criminal investigation.
"The board needs to work on behalf of the public, not the doctors," Mitchell said.
"I'm going to make sure they (investigators) get what they want," Clark said. "We're working with the attorney general's office to make sure this is done right."
On the same day that Clark said he would work to let investigators see all the complaints they wanted, Desai and Dr. Eladio Carrera agreed to extensions of the temporary restraining orders issued last week that bar them from practicing medicine.
Desai's agreement extends his medical license suspension until the State Board of Medical Examiners completes its disciplinary proceedings. Carrera agreed to an extension of his suspension until a July 16 court hearing.
The agreements mean court hearings scheduled this morning for Desai and Monday for Carrera will not be held, said Nicole Moon, spokeswoman for the attorney general.
District Court judges last week issued the restraining orders at the request of the medical board, which said they were necessary "to protect the public from further harm."
The doctors each performed procedures on three patients who contracted hepatitis C at the Endoscopy Center of Southern Nevada because of unsafe injection practices, according to court documents.
A source familiar with the criminal investigation of Desai said officials with the district attorney's office got the grand jury subpoena for police after Clark made it clear that he never would let police see all records pertaining to Desai.
"I'll be honest with you," Clark said. "I was a little surprised a grand jury got involved this early."
The subpoena was obtained from a seated grand jury, but a grand jury has not yet been empaneled in connection with the outbreak investigation, according to the source.
Assemblywoman Sheila Leslie, D-Reno, chairwoman of the Legislative Committee on Health Care, said it is "now more clear than ever" that the board acts only in "response to pressure."
She noted that the board got Desai to volunteer to stop practicing medicine only after a public hearing at which officials and former patients wondered why he still was allowed to practice. And she recalled that the temporary restraining orders filed by the board against Desai and Carrera came after legislators demanded action. "The board is not working on behalf of the public," she said. "It probably has to be replaced."
Leslie called it inappropriate that Clark serves as both executive director and acting general counsel to the medical board.
"The board needs an independent counsel," she said. "It definitely needs some good legal advice. This is embarrassing, to slow down a criminal investigation."
In documents prepared by city officials that resulted in the closure of Desai's Endoscopy Center of Southern Nevada, the physician was accused of ordering nurses to reuse syringes and single-use drug vials to save money. Those practices, public health officials say, led to eight confirmed cases of hepatitis C.
Hundreds of former patients who have been tested for blood-borne diseases have now learned they have hepatitis, according to their lawyers.
A public health investigation is under way to determine just how many cases can be linked to Desai's clinics.
Both Mitchell and Clark are unsure when Las Vegas police investigators actually will look at Desai's records. "It could be this week if we get the green light," Mitchell said.
It is too early to tell whether physicians will be prosecuted for their actions in the hepatitis outbreak, he said.
"We should know by June or July," Mitchell said. "But I can tell you this: Cops get prosecuted; lawyers get prosecuted. There is no statutory or moral exception from prosecution for doctors."
Review-Journal writer Brian Haynes contributed to this report. Contact reporter Paul Harasim at firstname.lastname@example.org or 702-387-2908.