A battle over the mental and physical fitness for trial of a once prominent Las Vegas physician in a 2008 hepatitis outbreak moves back to a Las Vegas courtroom on Friday, after a three-member Nevada Supreme Court rejected a defense attorney's request to postpone a crucial competency hearing.
The Tuesday ruling by the trio of high court justices clears the way for the fitness hearing for Dipak Desai, the former physician-owner of clinics where health officials say the hepatitis outbreak occurred.
An aide to Clark County District Court Judge Kathleen Delaney said Wednesday the hearing could take all day.
The high court justices rejected a Jan. 12 request by Desai's lawyer, Richard Wright, to halt the proceedings in Las Vegas until the state's only appellate court could hear Wright's argument that the judge “arbitrarily and capriciously” denied his request to present multiple witnesses and evidence showing that Desai is incapacitated by strokes and heart ailments and can't help his defense.
Wright did not immediately respond Wednesday to messages.
Prosecutor Michael Staudaher argues the 62-year-old Desai is faking or exaggerating the severity of ailments to avoid trial. Staudaher said Wednesday he was preparing for the Friday hearing “until I hear otherwise.”
Depending on Delaney's ruling on Desai's competency, trial is due to begin in March before another Clark County District Court judge, Donald Mosley.
Staudaher on Monday filed detailed arguments against state high court review of Delaney's rules for examining findings by doctors at a state mental hospital that Desai is fit for trial.
Delaney said Wright can present one witness to rebut findings reached by doctors who treated Desai during his six months in custody at the state's Lakes Crossing mental health hospital in Sparks. The northern Nevada stay was ordered after Desai was found medically unfit a year ago to stand trial.
Wright argues that Delaney is unfairly hurting his ability as a defense attorney to show the limits of Desai's mental status.
Desai, a former gastroenterologist, was a Nevada state Board of Medical Examiners member and owner of the Endoscopy Center of Southern Nevada and Desert Shadow Endoscopy Center before the hepatitis outbreak. He is free on $1 million bond.
He and two former employees, nurse-anesthetists Keith Mathas and Ronald Lakeman, have pleaded not guilty in state court to felony racketeering, fraud and patient neglect charges that could get them decades in prison.
Each is accused of infecting patients at Desai clinics with incurable hepatitis C by reusing endoscopy scopes and vials of an injected anesthetic during outpatient procedures in 2007.
Southern Nevada Health District officials in February 2008 began notifying more than 50,000 Desai patients to get tested for hepatitis and HIV. Authorities later determined that nine people contracted hepatitis C through unsafe injection and clinic practices, and said cases involving another 105 patients may have been related.
Desai also faces federal conspiracy and fraud charges on a separate indictment handed up last April in U.S. District Court in Las Vegas. Wright pleaded not guilty on Desai's behalf, and also argues there that Desai is not competent for trial.