Lawyers seek delay in federal trial of doctor linked to deadly hepatitis C outbreak

The issue of whether Dr. Dipak Desai is competent to face criminal charges resurfaced Tuesday, this time in his federal case stemming from the deadly Southern Nevada hepatitis C outbreak.

Defense lawyers and federal prosecutors are seeking a six-month delay in the trial, which is supposed to start Feb. 11, so that the imprisoned Desai’s competency once more can be explored.

In court papers both sides said Desai’s lawyers intend to ask for a mental evaluation of his client. The two sides also indicated they are having discussions about resolving the case with plea agreements.

“Counsel for Desai has a doubt as to Desai’s current competency to assist in his defense, including his current ability to knowingly change his plea or otherwise assist at trial,” the attorneys wrote.

Questions about Desai’s mental health because of strokes he suffered before and after the 2007 outbreak contributed to a two-year delay in his criminal trial in state court. He spent six months being evaluated at the state’s secure mental health facility in Sparks before experts there found him competent to stand trial. The experts concluded he was exaggerating the effects of the strokes.

On July 1, a jury convicted the 64-year-old Desai of all 27 criminal counts related to the outbreak, including second-degree murder in the death of infected patient Rodolfo Meana, 77. Co-defendant Ronald Lakeman, a nurse anesthetist, was acquitted of the murder charge but found guilty of 16 other counts.

District Judge Valerie Adair later sentenced Desai to life in prison with the possibility of parole after 18 years. She ordered Lakeman to spend eight to 21 years behind bars.

Desai is serving his time at the Northern Nevada Correctional Center in Carson City, which has a medical and mental health unit.

Both Desai and his former clinic manager, Tonya Rushing, are facing one count of conspiracy and 25 counts of health care fraud in the federal case.

Rushing, who was a prosecution witness in the state trial, is negotiating a plea deal that would require her to once more testify against Desai, according to her lawyer, Louis Schneider.

The federal case, which was filed in April 2011, has been delayed five times, primarily because federal prosecutors agreed to allow the state case to proceed first.

Desai and Rushing are accused of carrying out a scheme between January 2005 and February 2008 to inflate the length of medical procedures and overbill health insurance companies.

Until now, defense lawyers have not addressed Desai’s competency in federal court because their efforts were focused on the state case.

The state charges, which also included criminal neglect of patients and insurance fraud, involved the hepatitis C infections of Meana and six other patients at Desai’s now-closed Endoscopy Center of Southern Nevada on Shadow Lane in 2007. Health officials genetically linked the blood-borne virus in those patients to the clinic.

Another infected patient, Michael Washington, 73, died in Texas in August. District Attorney Steve Wolfson hasn’t decided yet whether to pursue additional murder charges against Desai and Lakeman over Washington’s death.

During the lengthy trial, prosecutors contended unsafe injection practices involving the anesthetic propofol led to the outbreak. The combination of double-dipping syringes into propofol bottles used on multiple patients spread the virus from source patients infected with hepatitis C on two different dates in 2007, prosecutors alleged.

Desai gave up his medical license after health officials disclosed the outbreak in 2008.