Desai enters not guilty plea; trial set for March 14

Dr. Dipak Desai pleaded not guilty Friday to a 28-count criminal indictment stemming from the valley's 2007 hepatitis C outbreak.

In his first court appearance since health officials disclosed the outbreak in February 2008, the 60-year-old Desai looked fit and stood tall in the courtroom of District Judge Donald Mosley, but did not enter the plea himself. His attorney, Richard Wright, spoke for him, telling the judge that a July 2008 stroke had impaired the gastroenterologist's cognitive abilities.

Mosley set a March 14 trial date.

As he walked into the crowded courtroom, followed by his wife and daughter, Desai, wearing a black suit, appeared to be fine physically. But Wright guided him by his left arm to the defense table. When Mosley asked him a question, Desai nodded his head and mumbled before Wright stepped in, responding for him. The attorney continued to respond on behalf of his client for the rest of the hearing. Afterward, neither Desai nor Wright commented.

Desai, who ran the clinics where health officials say the hepatitis C infections occurred, is free on $1 million bail. He and two of his former nurse anesthetists, Keith Mathahs and Ronald Lakeman, are facing an array of felony charges, including racketeering, insurance fraud and neglect of patients.

The charges revolve around the cases of seven people health officials say were infected with the potentially deadly hepatitis C virus at Desai's Endoscopy Center of Southern Nevada: one on July 25, 2007, and six on Sept. 21, 2007. Public health investigators said the virus was spread when a nurse anesthetist during a colonoscopy would reuse a syringe to draw medication for a patient, contaminating the medication vial, which would then be used for other patients.

On Friday, Mathahs, 74, also pleaded innocent to the criminal charges, but remained in custody after Mosley refused to lower his $500,000 bail. The judge, however, left the door open for his lawyers, Michael Cristalli and Mark Saggese, to revisit the bail issue.

Lakeman, 63, was arrested in Columbus, Ga., Tuesday evening and is being sent back to Las Vegas after waiving extradition. His lawyer, Frederick Santacroce, is set to argue to reduce his $500,000 bail on Monday.

With the case attracting intense public interest, Mosley warned both sides Friday about playing to the media.

"I would be disappointed to see this case tried in the press," Mosley said.

Chief Deputy District Attorney Mike Staudaher told the judge he wanted to resolve any questions about Desai's health early in the pretrial phase of the case.

"We want this looked at sooner, rather than later," Staudaher said.

For someone who is supposed to have suffered several strokes, Desai is taking only several "low-dose" medications that are typical for someone his age, Staudaher said.

Wright, however, said he planned to file pretrial motions that will address what he called Desai's limited ability to assist his lawyers during the trial.

Last year, as the Nevada Board of Medical Examiners looked at disciplinary proceedings against Desai, Las Vegas clinical neuropsychologist Thomas Kinsora found that Desai was "squarely on the borderline with regard to his ability to assist counsel."

Kinsora said his evaluation showed that Desai was "likely acceptably competent, but certainly not optimally competent."

Desai voluntarily surrendered his license before the board could take action against him.

His competency to stand trial is expected to be a major issue in the coming weeks.

Staudaher told the judge Friday that he thought the criminal case might have to be temporarily transferred at some point to District Judge Jackie Glass, who oversees proceedings involving the competency of defendants.

That could lead to a battery of medical evaluations for Desai and even confinement at a state medical facility to determine whether he is capable of assisting his lawyers at trial, according to Bill Dressel, president of the National Judicial College in Reno.

Simply being unable to speak to his lawyers would not be enough to keep Desai from standing trial, Dressel said.

"They'll have to show that he can't communicate at all," Dressel explained. "They'll have to show that his mental faculties are so impaired that he can't assistant his counsel in any fashion."

Although Desai appeared to have trouble talking in court, when Mosley asked Wright whether his client understood the charges he is facing, Wright responded that he did.

The racketeering count against Desai and the other defendants, which draws a maximum 20-year prison term, alleges Desai and the other defendants carried out a criminal enterprise between June 2005 and May 2008 that falsified anesthesia records during routine procedures at his clinics and submitted false anesthesia records to insurance companies to obtain money under false pretenses.

The insurance companies were billed in excess of the actual cost for the anesthetic and time devoted to the endoscopic procedures.

The indictment also alleges Desai jeopardized the safety of patients by pressuring clinic employees into using additional doses of the sedative propofol from single-use vials on more than one patient during procedures. The employees also were alleged to have been pressured into reusing syringes and needles and other medical instruments.

The indictment accuses Desai of creating an environment that limited the use of medical supplies necessary to conduct safe endoscopic procedures and rushed those procedures on a daily basis -- all for the purpose of "enhancing" financial profits.

Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135 or read more courts coverage at lvlegalnews.com.