LAS VEGAS (AP) — Executives at Nevada’s largest health management organization had no idea about allegations that a clinic owner was cutting corners and endangering patient safety, so it shouldn’t be held liable for two members contracting incurable hepatitis C, a defense lawyer told a jury Thursday.
Health Plan of Nevada attorney D. Lee Roberts Jr. instead blamed former endoscopy clinic owner Dipak Desai for a hepatitis outbreak that health officials traced in 2008 to unsafe use of anesthetics and surgical instruments at Desai outpatient clinics in Las Vegas.
Roberts asked jurors to reject claims that Health Plan of Nevada and parent company Sierra Health Services Inc. were responsible for the infections of Helen Meyer and Bonnie Brunson stemming from procedures in 2005 simply because Desai was a credentialed doctor in the company network.
“It is up to you to determine what is ordinary and reasonable care, and what we should have known,” Roberts said, standing next to a poster reading, “Plaintiffs have not proven HPN and SHS had actual knowledge that Desai was dangerous.”
Defense closings are scheduled to continue Friday.
On Wednesday, jurors heard attorneys Robert Eglet and Will Kemp ask for tens of millions of dollars in compensatory damages for Meyer, Brunson and Brunson’s husband, Carl Brunson.
A $350,000 Nevada medical malpractice liability cap for doctors doesn’t apply to the insurance companies. The plaintiffs’ attorneys are arguing that the companies exhibited bad faith and failed to protect members.
Eglet asked the jury on Wednesday to award the Brunsons $25 million in compensatory damages. Kemp asked for a “fair and reasonable” amount.
Eglet and Kemp plan to seek another $1 billion if the jury finds the firms liable and extends the case to a punitive damages phase, which could take several days of testimony. Defense attorneys would be expected to ask the judge afterward to limit any punitive damages award to three times the amount of a compensatory award.
Roberts on Thursday denied claims by Eglet and Kemp that company executives ignored warning signs, and that financial administrators failed to tell counterparts overseeing medical care that Desai posed a danger.
“The theme here is that the money people knew Dr. Desai was bad and that they told the doctors’ side to use him,” the defense attorney said. “Where’s the evidence of that?”
Desai, who according to testimony used to claim that his clinics could perform endoscopies faster than any other in the nation, is a former member of the state Board of Medical Examiners. He isn’t named in the lawsuit.
He has denied wrongdoing, declared bankruptcy and surrendered his medical license. He faces trial in state court next month and federal court in May on separate criminal charges stemming from the hepatitis outbreak.
His lawyers have fought for years to prove that he’s incapacitated by strokes and other physical ailments and unfit for trial.
State prosecutors say Desai is faking his medical conditions to escape prosecution.
Since the Meyer and Brunson lawsuits were filed in early 2010, Health Plan of Nevada and Sierra Health Services have joined United Heathcare, part of publicly traded UnitedHealth Group.
Roberts and other lawyers filed a 70-page document last week claiming they had been prevented during trial from fully presenting evidence showing administrators followed industry standards in credentialing network doctors and that state inspectors and accrediting agencies didn’t report Desai clinic shortcomings during credentialing visits.
The lawyers also protested the exclusion of testimony from a former Endoscopy Center of Southern Nevada gastroenterologist who treated Meyer.
Dr. Clifford Carrol was disqualified after telling the judge under oath that he overheard a defense lawyer in a court hallway on March 13 summarizing for a reporter the testimony from another witness. Carrol told the judge he felt his own testimony might be mischaracterized.
The hepatitis outbreak became public patients in early 2008, when the Southern Nevada Health District in Las Vegas notified more than 50,000 to get tested for blood-borne diseases including AIDS.
Health investigators traced hepatitis C infections of nine people to procedures conducted in 2007 at endoscopy clinics owned by Desai. Although investigators reported finding hepatitis C in another 105 patients, the cases weren’t conclusively linked to Desai clinics.
The jury of eight people and four alternates heard five weeks of testimony before closing arguments began Wednesday.
Eglet and Kemp won hundreds of millions of dollars in civil judgments in 2011 against pharmaceutical companies they blamed for recklessly supplying 50 milliliter vials of the powerful anesthetic propofol to Desai clinics. Jurors were told the large vials were unsafely reused from patient to patient. Desai and his clinics reached undisclosed settlements with plaintiffs before trial in those cases.
Roberts has argued that those lawsuits showed the pharmaceutical firms and the misuse of propofol were to blame for the hepatitis outbreak.
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