Patients in outbreak lawsuit can claim emotional distress

Patients suing the Endoscopy Center of Southern Nevada for potential exposure to blood-borne diseases will be allowed to claim damages for emotional distress in a class-action lawsuit, a judge ruled Tuesday.

Lawyers for the clinic linked to a hepatitis C outbreak argued that the patients who didn't contract a disease could not claim emotional distress unless they suffered a physical injury.

"In this case ... I don't believe a physical injury was suffered," said David MacDonald, who represents the Endoscopy Center and the affiliated Gastroenterology Center of Nevada.

But District Judge Allan Earl disagreed in denying the clinic's motion to dismiss, saying the mental anguish of potential exposure could lead to physical symptoms.

The judge did agree with MacDonald that the clinic should not be held liable under product liability and warranty laws because the clinic did not sell vials of anesthesia and other supplies to the patients. Earl dismissed lawsuit claims under those laws, while allowing the negligence claim to go forward.

Lawyer Will Kemp, who is leading the class-action lawsuit, argued that the clinic was a seller of medical supplies, specifically Propofol, the anesthesia used in the clinic's procedures. Kemp said the clinic billed patients $200 for each 50 milliliter vial after buying them for $33 a piece.

But Earl worried about the potential impact of a ruling that would hold medical providers liable for every medical supply they used.

"If the hospital has to be responsible for every one of these (products) on a product-liability basis, the burden would be overwhelming," Earl said in dismissing the claims.

In an earlier ruling Earl dismissed Nevada Mutual Insurance Co., which provided medical malpractice insurance to the Endoscopy Center, from an unrelated lawsuit.

Lawyer Robert Cottle, representing the patients who filed the lawsuit, said the insurance company had a responsibility to inspect and evaluate the clinic's procedures before insuring it.

He also suggested that Dr. Dipak Desai, majority owner of the Endoscopy Center and a former Nevada Mutual Insurance board member, might have used his influence to avoid such oversight.

But Alice Campos Mercado, a lawyer for Nevada Mutual Insurance Co., said the company had no duty to the clinic's patients or to tell its doctors what to do.

"It's an insurance company. They are not medical doctors," she said.

Earl agreed and dismissed the company from the lawsuit, saying the insurance company had a responsibility not to patients but its shareholders.

Contact reporter Brian Haynes at or 702-383-0281.