Nevada justices side with patients in hepatitis outbreak

CARSON CITY — Patients who were exposed to unsafe injection practices at some health care facilities in Southern Nevada can make a claim for negligence even though they have so far tested negative for hepatitis C or other illnesses, the Nevada Supreme Court said Wednesday.

A three-justice panel of the court reversed a Clark County District judge who had ruled against Susan and Jack Sadler and others in similar circumstances.

The court said even in the absence of a present physical injury, those patients who have so far tested negative for hepatitis B, hepatitis C and HIV, or who have yet to be tested, may claim negligence based on the need to undergo medical monitoring.

“This is a huge ruling allowing for medical monitoring in the state of Nevada, which was unsettled prior to this case,” said Las Vegas attorney George West, who along with Craig Marquiz are representing the Sadlers and thousands of other Southern Nevadans in the class.

“It’s a great result and good law for the state of Nevada,” Marquiz said.

The potential cost to the HMO should the Sadlers and others ultimately prevail is still being determined, Marquiz said.

Unsafe practices at several colonoscopy clinics in Southern Nevada were identified in 2008 and ultimately resulted in one of the worst hepatitis C outbreaks in U.S. history. One of the main figures in the health care was Dr. Dipak Desai, who owned several endoscopy clinics. Desai was convicted in 2013 of 27 criminal counts and sentenced to life in prison with the possibility of parole after 18 years.

The Sadlers filed a complaint against the health maintenance organization PacifiCare of Nevada, claiming the company failed to perform its duty to establish and implement a quality assurance program to oversee the medical providers within its network.

PacifiCare argued that the complaint failed to state a negligence claim on the ground that they had not alleged an “actual injury,” such as testing positive for a blood-borne illness.

The District Court ruled for PacifiCare, finding that the claims were based on a risk of exposure to infected blood, which the court said was insufficient to allege an injury.

But the Supreme Court panel, in a decision written by Justice James Hardesty, found that the Sadlers’ complaint adequately alleged an injury in the form of exposure to unsafe injection practices that caused a need for ongoing medical monitoring to detect any latent diseases that might result from those unsafe practices. The court ordered the class action lawsuit back to District Court for further proceedings.

The Sadlers, and others similarly situated, filed the lawsuit on July 8, 2008, against PacifiCare for negligence due to what their attorneys have argued is PacifiCare’s failure to conduct mandatory annual quality medical assurance reviews of its providers, including the Endoscopy Center of Southern Nevada, the Desert Shadow Endoscopy Center, the Gastroenterology Center of Nevada, and the Spanish Hills Endoscopy Center.

The businesses were at the center of the 2008 hepatitis outbreak in Clark County that identified over 40,000 patients who were subjected to unsafe injection practices that potentially exposed them to debilitating and life-threatening viral blood-borne diseases.

The clinics were found to be reusing syringes and anesthesia vials with multiple patients.

Hepatitis c leads to inflammation of the liver and in the long term can lead to severe liver damage, liver cancer, and liver failure.

According to the appeal filed on behalf of the class, investigators discovered over 100 confirmed cases of hepatitis C in persons who were patients of the endoscopy centers during that time period in what has been called one of the worst hepatitis C outbreaks in the U.S. The Southern Nevada Health District along with the CDC directed that 63,000 patients undergo diagnostic testing to determine if they contracted any diseases from the unsafe practices.

In its brief challenging the appeal, attorneys for PacifiCare said the Sadlers have not alleged that they have suffered any physical injuries as a result of any potential exposure.

“Their only allegation of injury is that they might have been exposed to hepatitis C as patients at ECSN,” said the court filing. “The question in this case is thus whether the mere possibility of coming in contact with a disease is an injury cognizable under the law of negligence.”

The Sadlers allege that PacifiCare violated Nevada’s quality assurance regulations applicable to health maintenance organizations, and that if the HMO had complied with those regulations, the improper practices at the endoscopy centers would have been discovered and stopped.

As a result, they want PacifiCare to pay for future medical monitoring costs.

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801.