Hepatitis victim to testify law unfair

She says it's happened so many nights -- fear pulls Josephine Washington out of her sleep so she can see whether her husband is still breathing.

It is, she sighs, how you live life when a loved one's health continues to deteriorate from hepatitis.

"I really think I have to get counseling," the retired registered nurse said as she stood in the kitchen of her Henderson home Tuesday morning. "I'm afraid and depressed a lot. His liver is so swollen and he has cramps and so much pain. It's no way to live."

Michael Washington, her husband of 30 years, is one of nine people that public health officials say was infected at Las Vegas clinics where Dr. Dipak Desai was the majority owner. Authorities say more than 100 other hepatitis cases are possibly linked to the clinics.

Today, the 69-year-old retired Air Force veteran is scheduled to testify before the Senate Judiciary Committee, arguing on behalf of a bill that would remove the key element of the 2004 medical malpractice reform initiative: a $350,000 cap on pain and suffering damages.

He says he will relate how acquiring both hepatitis B and hepatitis C worsened his diabetes to the point where he can no longer take oral medication to control it -- now he must have three insulin shots per day.

And, he said, he also will let legislators know that doctors have said that it was hepatitis that caused his glaucoma -- treated before with eye drops -- to become so severe that he has needed two eye operations.

He said his health is so compromised that doctors say it would be too risky for him to take the interferon treatments often used to fight hepatitis.

"Believe me," he said as he exchanged glances with his wife, "I'm not for frivolous lawsuits. But I am for fairness. The way my life has been changed is just terrible. I have to worry now all the time that I'm going to give this to someone else."

Washington has said health officials told him he was the first person to contract hepatitis C while undergoing a colonoscopy at the since-closed Endoscopy Center of Southern Nevada.

On July 25, 2007, records show that Desai, a registered nurse and a nurse anesthetist were in the operating room with Washington.

In 2008, city officials in a report said Desai ordered his nurses to reuse syringes and single-use medicine vials, and that investigators were told this approach was used to save money.

In all, health officials advised more than 50,000 patients of the clinics to get tested for infectious diseases.

What Washington expects to share with lawmakers, he said, is his belief that the current law is "simply unfair to the most vulnerable people in the community: children, homemakers and senior citizens."

The current bill allows for recovery of economic damages, including loss of future earnings and medical expenses, but Washington pointed out that seniors, stay-at-home moms and children don't have future earnings to calculate.

"Why should the most vulnerable be left with practically nothing when they're suffering and their lives are changed forever?" he said. "Aren't their lives worth something? Why do we want to protect bad doctors?"

As it stands now, malpractice awards for children, seniors and stay-at-home parents, and people who are injured but can still work essentially come out of the capped awards allocated for pain and suffering, a sum divvied up between the attorney and client.

Ed Bernstein, Washington's lawyer, said attorneys often have to pay more than $100,000 for experts to prove a case that may take months or years. "Many attorneys will no longer take malpractice cases because it doesn't make economic sense," he said.

Doctors and insurance executives, who largely funded the 2004 initiative, argued that large payouts in Nevada -- often for pain and suffering -- caused medical malpractice rates to escalate dramatically. That, they said, was causing doctors to leave in droves.

Though the argument was found to be specious by the nation's General Accounting Office, it helped persuade Nevadans to vote for the initiative, which doctors say has helped their malpractice insurance rates drop by as much as 30 percent.

Desai, Washington noted, was the doctor who gave the most money -- $25,000 -- to the malpractice reform initiative that became known as Keep Our Doctors In Nevada.

Now Washington's life has forever changed, he said.

"I don't cook any more because I'm afraid of cutting myself and giving it to others. When I go to someone's house, I always hope they have paper plates and cups that I can throw away."

Among his other medical issues, he has to deal with cramps in his abdomen.

Is Desai, he asked, "the kind of doctor we want to keep in Nevada?"

Contact reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.