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Desai Mistrial Possible

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(Photo: CBS) Dr. Dipak Desai

(Photo: CBS) Dr. Dipak Desai

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Las Vegas CBS KXNT – Six weeks into the criminal trial of endoscopy clinic owner Dr. Dipak Desai, there are possible grounds for a mistrial after  a key witness revealed on the stand that she and Desai are both under federal indictment.

The jury was removed from the room, and Desai defense attorney Richard Wright made a mistrial motion.  Federal insurance fraud charges pending against Desai are separate from the charges brought by the state, and are inadmissible in the current trial.

Tonya Rushing had been on the witness stand for less than three minutes when prosecutor Mike Staudaher asked her if she is under any indictment. When she said yes, Staudaher asked who is involved along with her in the indictment.

“Dr. Desai and myself,” Rushing said.

Rushing is Desai’s former operations manager. The federal charges stem from the alleged alteration of patient records at the Endoscopy Center of Southern Nevada for the purpose of billing insurance companies for more time than patients actually received. The billing irregularities were uncovered during a multi-jurisdictional investigation of a hepatitis C outbreak in the Las Vegas valley, which was traced to the endoscopy clinic.

Wright said he had not planned to question Rushing during cross-examination about her own indictment, for fear of treading accidently into the charges against Desai.

Judge Valerie Adair said there has been ample testimony already about the involvement of federal agencies in the investigation.

Wright countered that it does not follow from the presence of those agencies that Desai faces federal charges.

Staudaher conceded that his question to Rushing was “inartful,” but told the judge he was following a protocol established for the sake of clarity, since numerous witnesses in the trial have immunity from criminal prosecution.

Adair instructed the attorneys to spend the evening scouring their notes from previous testimony, to discern whether this is the jury’s first introduction to the possibility that federal charges may be pending, or whether it might already have been inferred from other witnesses.

“I want to avoid granting a mistrial if there’s any way to avoid it,” Adair said, noting that the jury has been seated for six weeks.

“I know that’s irrelevant if there’s a bell that can’t be unrung,” she said, adding that she is mindful of the rights of the accused.

Two Mistrial Motions in a Single Day

The mistrial request was the second of the day. The first occurred on Monday morning when a witness asked to change testimony he had given on Friday.  Former endoscopy clinic employee Rod Chaffee said he realized that he’d misspoken after reading the newspaper account of his testimony over the weekend.

Chaffee testified last week that while he was working as a nurse at the clinic, he’d seen nurse anesthetist Ronald Lakeman reusing needles and syringes.  Lakeman is on trial along with Desai for their alleged roles in the transmission of hepatitis C to clinic patients.

Under cross-examination by attorneys for Desai and Lakeman, Chaffee said Friday’s testimony was incorrect, and that he had not witnessed Lakeman reuse needles and syringes.

Chaffee said he was aware that a report from the Southern Nevada Health District attributed to him the statement that he had seen needles and syringes reused, but that the report had been mistaken.

The cross-examination took place after Adair denied the mistrial request by Lakeman’s attorney.  Rick Santacroce called Chaffee’s statement “so damaging, and so prejudicial” that a mistrial would be the only remedy.  Desai attorney Wright joined in the mistrial motion.

Adair told the defense they were free to impeach the witness during their cross-examinations, but that because Chaffee had voluntarily contacted the prosecutors to inform them of the discrepancy, the incident did not necessitate a mistrial.

The two attorneys then spent the morning discrediting Chaffee, starting with questions about erratic behavior that got him fired  from the clinic. He said the behavior was a result of grief after his wife’s death.

Wright questioned Chaffee about an incident in which Chaffee asked a fellow employee if she wanted to see his penis, and then showed her a photo of himself “flipping the bird.”  He asked whether Chaffee had made a bomb threat to the clinic, telling another employee that he was “in kill mode.”  Chaffee confirmed both incidents.

Chafee also confirmed that he had taken a vagrant into his home, with the hope of rehabilitating him, and then told clinic employees that the vagrant had used his computer to order components for a methamphetamine lab.

Outside the presence of the jury, Wright argued unsuccessfully that he should be able to introduce evidence of Chaffee’s arrest for possession of meth paraphernalia.

The witness and the lawyers for the parties were not in agreement about whether Chaffee was offered immunity for his testimony.  Prosecutor Staudaher maintained there was not an agreement, but defense attorneys produced a proffer letter. The witness was unclear on whether he had been granted immunity, and by whom.

The focus of the trial is the transmission of the hepatitis C virus to six endoscopy patients during two days in 2007.  One of the patients has since died.  Desai and Lakeman are charged with multiple counts of criminal negligence and one count of second-degree murder.

A report by the Center for Disease Control identified “double dipping” of syringes into open bottles of propofol as the most likely cause of a hepatitis C outbreak that was traced in 2008 to the Desai clinic.

Former employees have testified that nurse anesthetists would give a second dose of the sedative to patients who began to stir during a procedure, using the same syringe with a new needle. The bottles could have been contaminated by traces of blood in the syringes.  Leftover propofol in an open bottles was used on subsequent patients, even though the bottles were labeled for single use only.

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