Lawyer’s interview complicates trial in Hepatitis C lawsuit
Health Plan of Nevada’s defense was dented Thursday when Clark County District Judge Timothy Williams tightly circumscribed what a key witness could say on the stand about his time as a former medical practice partner of Dipak Desai.
The ruling resulted from Dr. Clifford Carrol’s brief testimony on Wednesday that he felt “intimidated” after overhearing a radio interview given in the corridor outside the courtroom given by a member of Health Plan of Nevada’s legal team.
In the interview, attorney Peter Bernard pinned the hepatitis C outbreak among patients treated at Desai’s defunct Endoscopy Center of Southern Nevada on malpractice by the former doctor and his colleagues.
The HMO is defending itself against allegations by two former Desai patients that company officials should have detected Desai’s dangerous practices and ousted him from its network of physicians.
The company has said Desai went to great lengths to hide what he did.
“I’m frightened that if I am asked a question and I give an answer that could be taken out of context from inside this courtroom that it could be reported or disseminated and, again, that I would suffer insult to my ability to practice,” Carrol said.
As a result, Williams ruled Thursday that Carrol could not testify about either his opinions of what happened at the clinic or about the practices he witnessed.
“I’m not sure what’s left,” said Lee Roberts, another Health Plan of Nevada attorney.
“I don’t know what would be left either,” Williams responded.
The HMO’s lawyers now face the prospect of trying to find another witness to bolster their assertion that Desai carefully hid unsafe cost-cutting practices.
His clinic is suspected of reusing bottles of the anesthesia propofol in a way that spread hepatitis C.
Roberts had explained that Carrol’s testimony “is great evidence for us. It is evidence that these practices which (the patients’ lawyers) claim were rampant and would be readily observed by anyone walking into the clinic were not observed by someone who attended 30,000 procedures at the clinic. ... That’s what they don’t want the jury to hear.”
But attorney Robert Eglet, representing patients Helen Meyer and Bonnie Brunson, said he intended to cross-examine Carrol with “a pile of evidence” about a range of unsafe medical practices.
As a result of his sudden reluctance to say much on the stand, said William Kemp, another attorney for the patients, “now he’s going to come and say, ‘I don’t know, I never saw, I don’t remember.’ This is what they (Health Plan of Nevada) want.”
The fight over Carrol’s testimony is just one battle, waged outside the jury’s presence, in an assault by Eglet to strip Health Plan of Nevada’s legal defenses.
Officials have determined that at least seven hepatitis C infections are linked to Desai’s former clinic, the Endoscopy Center of Southern Nevada, and that more cases were “possibly linked” to the clinic.
Contact reporter Tim O’Reiley at toreiley@reviewjournal.com or 702-387-5290.
