Vegas urologist Michael Kaplan faces sentencing for endangering patients

Different opinions of the character of urologist Michael Kaplan have emerged in court documents as he faces sentencing Tuesday for reusing equipment meant for single use in medical procedures.

Federal prosecutors are seeking more than the recommended 41 months in prison for Kaplan, arguing he endangered the lives of patients out of greed despite being worth $11 million.

Even the well-publicized and deadly hepatitis C outbreak caused by the unlawful reuse of medical equipment by Dr. Dipak Desai failed to deter Kaplan, prosecutors contended.

Defense lawyers are seeking probation, arguing Kaplan was dedicated to his profession and motivated by a desire to save the lives of his patients, mostly cancer victims. The lawyers have assembled more than 180 letters of support from Kaplan’s patients, friends and colleagues and have accused prosecutors of using demagoguery in a misguided pursuit of the tough sentence.

On Tuesday, Chief U.S. District Judge Gloria Navarro will have to decide which Kaplan to sentence.

In a sentencing memorandum, Assistant U.S. Attorneys Crane Pomerantz and Peter Leininger asked for 48 months in prison, a $50,000 fine, three years of supervised release and 300 hours of community service after prison.

“The twin blows of the endoscopy scandal and this case have eroded the community’s confidence in health care providers in Las Vegas,” the prosecutors wrote. “A lengthy prison sentence will help restore that confidence.”

Pomerantz and Leininger did not hide their disdain for Kaplan, who was convicted by a federal jury in September of one felony count of conspiracy to commit adulteration.

“On occasion, a defendant commits a crime that is so vile and inexplicable that even a lengthy guideline sentence fails to capture adequately his conduct,” the prosecutors said in their court papers. “Michael Stanley Kaplan committed such a crime.”

Between December 2010 and March 2011, Kaplan reused rectal needle guides, an $18 device, during prostate biopsies and then “defrauded and misled his patients, the public and law enforcement by taking substantial steps to conceal this disgusting practice,” the prosecutors wrote.

Kaplan, 60, a U.S. Army veteran, had been a licensed physician in Nevada since 1990 and had built his urology practice into one of the largest in Las Vegas.

Kaplan’s professional misdeeds were revealed in 2011 after a joint investigation by the U.S. Food and Drug Administration and the Nevada State Board of Medical Examiners.

The Southern Nevada Health District sent letters to 101 of his patients, advising them to get tested for HIV and hepatitis B and C. The district did not report a positive case among the patients.

Prosecutors contended during the trial that Kaplan ignored warning packaging labels prohibiting the reuse of the disposable guides, which never was disclosed to patients.

The guides, plastic-covered sheaths through which needles are directed to obtain biopsy material, were not properly cleaned before reuse, prosecutors alleged. Biopsies help detect prostate cancer.

Prosecutors described in graphic detail during the trial how blood, feces, bacteria and viruses were pulled from the rectums of patients by needles through the guides during a 20-minute procedure.

In their court papers, Pomerantz and Leininger said Kaplan and the community was lucky to avoid a deadly virus outbreak similar to what occurred at Desai’s clinics. Desai is serving a life prison sentence stemming from his conviction in the death of one of his hepatitis-infected patients.

Kaplan’s lead attorney, Dennis Riordan of San Francisco, ripped into the prosecutors, calling their effort a “shameless exercise in demagoguery that impedes, rather than advances, the pursuit of justice.”

“This extraordinary and single-minded effort to demonize a good and decent man who has well-served his country in the military ignores the extensive evidence of his exceptional character and continued service to his community,” Riordan wrote in his sentencing memorandum. “The caricature presented by the government would be risible were it not potentially subversive of the task now before the court.”

Riordan said it is “unconscionable” for the prosecutors to liken Kaplan to Desai. Riordan argued the level of misconduct committed by Kaplan didn’t come close to the sweeping criminal actions attributed to Desai, who also pleaded guilty in federal court to a health care fraud conspiracy.

“The approach recommended by the government asks the court to turn a blind eye to Dr. Kaplan’s actual character and culpability and to consider him a surrogate for one of the most roundly reviled medical practitioners in state history,” Riordan wrote.

A sentence of probation with conditions is more than enough punishment for Kaplan, who no longer practices medicine because he can’t get insurance, Riordan argued.

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