Prosecutor says Desai's statements, evaluations don't add up


After Dr. Dipak Desai was found incompetent to face criminal charges stemming from a 2007 hepatitis C outbreak, the lead prosecutor again questioned whether Desai was feigning the severity of his impairment from two strokes.

Deputy District Attorney Michael Staudaher said nothing has changed since Desai entered his not guilty plea to felony charges, when he said through his attorneys that he understood the charges against him and was aware of the players in the case.

Yet two Las Vegas doctors found that Desai doesn't understand the case against him, Staudaher said, and District Court Judge Jackie Glass delayed his March 14 trial indefinitely while he undergoes more testing in a state mental hospital.

"There has not been another medical event in his life," Staudaher said Monday. "This doesn't add up."

The medical evaluation, which has not been made public, was ordered by Glass after Desai's lawyer, Richard Wright, argued that the physician could not participate in his own defense.

The question of whether Desai could be faking disability came front and center last week when a Las Vegas neurologist, Dr. Morton Hyson, said the results of tests measuring a stroke victim's facility of speech, memory and movement "can be faked. "

A physician might be better able to answer questions in a way that would indicate an impairment because of his medical expertise, Hyson said.

Knowing how to massage the answers to medical questions isn't the only way for someone to appear more impaired from a stroke than they really are.

Ernest Bryant, a board certified neuropsychologist who practices in the San Francisco Bay Area, said the use of medications can also change a test's outcome.

"Could a person be impairing his skills by taking medication? Absolutely," he said. "It is a valid question to ask, particularly when someone could benefit from being found impaired."

Desai, 60, a gastroenterologist, faces several felony charges, including racketeering, insurance fraud and neglect of patients.

If Desai is deemed incompetent without the possibility of recovering, the charges against him would be dismissed, according to state law.

The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai's Endoscopy Center of Southern Nevada.

Public health officials, who asked 50,000 people to undergo testing for hepatitis and HIV, say more than a hundred former patients may have contracted the virus at his clinics.

Bryant said it has long been known in the medical community that many drugs, including morphine derivatives and benzodiazepines, a class of medications that include Valium, can affect cognitive performance on tests of competency.

Bryant said that before doctors start competency testing they routinely ask the individual if they had been using drugs recently, "because they know it can alter the outcome."

Trusting an individual who is charged with a crime to answer truthfully may not be wise, he said.

The California physician said he can not point to any specific cases that show that drug usage has beaten competency tests.

"I've only heard about it anecdotally," he said.

Clark County District Attorney David Roger said doctors who concluded that Desai is incompetent never mentioned in their report whether he was required to submit to a drug screen.

"It would probably be reflected in the report if he was (tested for drugs), and it's not reflected there," Roger said. "It's highly unlikely that he was. ... I do know it's not a condition of his bail."

The two court-appointed medical experts from Las Vegas who tested Desai, clinical psychologist Shera D. Bradley and psychiatrist Dr. Michael S. Krelstein, refused to comment last week.

Wright said he could not comment on Desai's case because of "attorney-client privilege."

A stroke occurs when a blood vessel bringing oxygen and blood to the brain ruptures or gets blocked, and brain cells do not get the flow of blood they need.

How a stroke patient is affected depends on where the stroke occurs in the brain and how severely the brain is damaged.

While some people suffer lasting damage to speech and memory and may even be partially paralyzed, others recover with no impairment.

Less than two months after Desai's first stroke, he was back doing surgery in his clinics.

According to a source with knowledge of the report, Desai has not undergone any therapy for his latest stroke. Sensory and motor impairments were minimal, the source said.

A member of Desai's Hindu temple said the physician has been able to participate in religious services.

Douglas Cooper, director of the Nevada State Board of Medical Examiners, said it appears that in 2009 when neuropsychologist Thomas Kinsora evaluated Desai for the board, he, too, did not do a drug screen.

"It's not the standard to do drug screening for such tests," Cooper said.

Kinsora told the medical board that residual effects of a stroke Desai suffered in 2008 would make it difficult for him to assist in defending against malpractice allegations.

Like prosecutors, Cooper said he had never thought of someone using drugs to beat the competency test.

Staudaher, who is handling the prosecution of Desai, said Monday he never entertained the possibility that the physician would use drugs to alter his mental state for testing.

No motions were made to Glass to have Desai screened for drugs.

Karen Morrow, a legal secretary who had to undergo more than a year of agonizing antiviral therapy to try and rid her body of the virus, wouldn't be surprised if the physician has contrived the severity of his medical condition.

Morrow, who spoke last year at the National Press Club in Washington, D.C., about the outbreak, has talked with prosecutors about her concerns.

"You saw him walk into court just fine the other day and ask the guard if it was all right to sit down, just like anyone else would," said Morrow, who goes to as many court appearances of Desai as possible "to see if justice is done."

When his attorney and prosecutors left the courtroom last week to confer with Glass in chambers, Desai walked over to the guard and spoke with him. The guard assured Desai he could sit at the witness table.

"It wouldn't surprise me at all that he's using drugs to accentuate the effects of his stroke," Morrow said. "I talked with someone very familiar with the drugs that could be used. Who better than a doctor to know what drugs to take?"

Glass ordered Desai to surrender March 17 so he can be taken to Lakes Crossing in Sparks, the state's mental hospital.

Harold Cook, administrator of the state's Division of Mental Health and Developmental Services, said Monday he expects Desai to be at the state mental hospital "for months."

"The typical stay is about 100 days," he said. "During that time, he won't have access to any outside medication."

Cook said it is very possible that the doctors will order a drug screening at the first evaluation of Desai.

"I can't say that definitely," he said.

He also said that the state won't have to hire outside psychologists and psychiatrists to evaluate Desai.

"We have them on staff," he said.

One law enforcement official said the best thing about the upcoming months of evaluation is that, "unlike the few days of testing he's undergone, it will be hard for him to pull the wool over someone's eyes for months."

Cook said if state medical authorities do find Desai incompetent to stand trial, the mental health division does not have the resources "to engage in the rehabilitation from a stroke that would help the individual possibly regain his competency."

"The judge would have to find another place for that," he said.

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

 

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