Supreme Court denies defense bid to halt trial in hepatitis C outbreak

The Nevada Supreme Court on Monday denied a defense bid to halt Dr. Dipak Desai’s criminal trial stemming from the 2007 hepatitis C outbreak.

In a split decision, the majority members of a three-justice panel said the court’s intervention to resolve questions about Desai’s competency is “unwarranted” at this time.

Justices Mark Gibbons and Ron Parraguirre found that District Judge Valerie Adair did not abuse her discretion in refusing to allow defense attorneys a more thorough examination of Desai’s ability to assist them.

The justices said the lawyers can raise the competency issue again during or after the trial if new questions about the physician’s mental failings surface.

Lead defense attorney Richard Wright had asked the high court last week to grant him a hearing to question Los Angeles neurologist David Palestrant, who reviewed hospital reports of small strokes Desai suffered in February.

Adair relied on Palestrant’s report in ruling that the strokes did not further harm Desai’s ability to help his lawyers and that there was no need to reopen the issue of his competency. The judge refused to allow Palestrant to be questioned.

Justice Michael Cherry said in a dissenting opinion Monday that a hearing would not have “significantly delayed the trial” and may have resolved some of the ongoing potential competency issues that could arise during the trial.

“I acknowledge the significant concerns with the possibility that Desai is embellishing his symptoms, but there has been an undisputed change in circumstances since prior findings of embellishment -- the recent series of strokes,” Cherry wrote.

The majority decision paves the wave for Adair and lawyers on both sides to select a jury this week. The trial is expected to last more than six weeks.

Desai, 63, and nurse anesthetist Ronald Lakeman, 65, face a series of charges in the state case, including second-degree murder, theft, insurance fraud and criminal neglect of patients.

The charges focus on the hepatitis C infections of seven former Desai patients. One patient, Rodolfo Meana, died of hepatitis C complications last year.

Desai’s federal criminal trial tied to the hepatitis C outbreak, meanwhile, has been delayed until after his ongoing state case.

U.S. District Judge Gloria Navarro late last week reset the federal trial from May 7 to Aug. 20.

Desai and his former clinic manager, Tonya Rushing, 44, face conspiracy and health care fraud charges tied to the outbreak.

Rushing is a prosecution witness in the state case and likely to testify against Desai, a gastroenterologist who gave up his medical license.

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

Both sides told Navarro in court papers last week that they had agreed the federal trial should be put off until after the state case.

Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135. Follow @JGermanRJ on Twitter.