Desai turns to Supreme Court in hepatitis C case

More delays are expected in the criminal case against Dr. Dipak Desai, as his lawyers Thursday asked the Nevada Supreme Court to grant him a full-blown hearing to determine his competency to stand trial.

Lead attorney Richard Wright filed a brief with the Supreme Court seeking to overturn a judge's order limiting the number of witnesses at an upcoming hearing challenging state medical experts who found Desai competent to face the charges tied to the hepatitis C outbreak.

Wright, who contends strokes have left Desai unable to assist his defense team, also asked the Supreme Court to halt the Jan. 27 competency hearing before District Judge Kathleen Delaney until the court decides whether to allow a full-blown proceeding.

"The defense will not be able to fully explore the petitioner's current mental status unless a full and fair hearing is held," Wright told the Supreme Court.

Delaney last month said Wright could call only one medical expert to testify about Desai's condition since leaving Lake's Crossing, the state's secure mental health facility in Sparks. Desai was under observation there for six months between March and September.

Wright later informed Delaney that he intended to appeal her order to the Supreme Court and asked her to delay the hearing. But the judge this week refused to do it after prosecutors had filed court papers opposing the delay. So Wright went to the Supreme Court.

If the high court puts off the hearing, it could make it more difficult to meet Desai's March 12 trial date.

Desai, 61, and two of his nurse anesthetists, Keith Mathahs and Ronald Lakeman, are facing felony charges, including racketeering, insurance fraud and neglect of patients.

The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai's clinics in 2007. Health officials disclosed the outbreak in early 2008.

District Judge Donald Mosley, who is overseeing the complex criminal case, which was filed more than 18 months ago, has made it known he is retiring. But according to a court spokeswoman, he has not set a retirement date yet, making it unclear whether he will be on the bench to preside over the trial.

In his brief to the Supreme Court, Wright said Delaney had "arbitrarily and capriciously" restricted Desai's constitutional due process rights to contest the findings of the medical experts from Lake's Crossing. The experts concluded that Desai has been exaggerating physical impairments caused by two strokes.

Wright said Delaney was taking a "myopic view" of the purpose of a competency hearing.

"It is contrary to both federal and state jurisprudence requiring that courts protect the fair trial rights of an accused whose competency to stand trial is called into doubt," he wrote. "Fundamental due process dictates that petitioner be afforded a meaningful opportunity to be heard, offer evidence and test the evidence."

The district attorney's office has argued that state competency laws don't allow for witnesses other than the Lake's Crossing experts.

Desai also faces federal charges.

He is to be tried May 22 with Tonya Rushing, his clinic manager, on one count of conspiracy and 25 counts of health care fraud.

A federal indictment alleged the pair carried out a scheme from January 2005 through February 2008 to inflate the length of medical procedures and overbill health insurance companies.

Desai has pleaded not guilty in that case, and federal prosecutors have not taken a position on his competency to stand trial there.

Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135.