Las Vegas CBS KXNT – A judge has denied a mistrial motion made by Dr. Dipak Desai’s defense attorney after the prosecutor induced a key witness to reveal on the stand that Desai is under federal criminal indictment.

District Court Judge Valerie Adair chastised prosecutor Michael Staudaher for asking a question he knew  would elicit inadmissible evidence.  Adair said she believed Staudaher asked the question unthinkingly, but warned him to prepare his questions more carefully going forward, citing a similar instance earlier in the case.

The mistrial motion arose from testimony by Tonya Rushing, former business manager for the Endoscopy Clinic of Southern Nevada, which was identified as the source of the 2007 hepatitis C outbreak in the Las Vegas Valley. She and Desai are both facing federal charges related to fraudulent billing records.  Those charges are separate from the charges brought by the state, and can’t be discussed in front of the jury in the current trial.

Adair said she did not believe the defense had been so severely damaged that it couldn’t be corrected with instructions to the jury to disregard the question. A judge is obligated to declare a mistrial if it’s clear that it’s no longer possible for the defendant to get a fair trial, Adair said, but in her opinion, Desai can still get a fair trial.

Rushing resumed testimony Tuesday afternoon, describing her role as operations officer in Desai’s medical business conglomerate, including several outpatient clinics and medical offices.  She started working for Desai in 2000, and assumed more responsibility over time until he helped her start a separate company to assume the billing for anesthesia services.

Rushing said she stayed on as an employee while she ran the billing service, which received information from patient charts and then billed insurance companies for the time spent with nurse anesthetists. She said she became concerned when one of Desai’s partners discovered times were falsified on a patient chart.

The  “pre-charting” practice was the means by which Desai and Rushing allegedly billed health insurance companies for more time with nurse anesthetists than those professionals actually spent with the patient. Other trial witnesses who worked at the clinic have been asked whether they were instructed to engage in pre-charting the start and finish time of patient procedures —  in some cases before the patient had been brought from the waiting room.  One nurse said she flatly refused to do it because she knew it was illegal.

The partner who discovered that the pre-charting had become routine has testified that he discovered uniform procedure times on every patient record as he combed through documents searching for other information in the wake of the hepatitis C outbreak. Dr Clifford Carrol said he knew something was wrong, because the time required to perform colonoscopies and upper endoscopies varied according to the experience and skill of each doctor, yet all the records reflected times of 31 minutes.

Rushing described Carrol as “livid” when he confronted Desai over the times.  She became frightened because she understood her own liability if the records did prove to be false, she said.

Rushing said Desai assured her that the times were correct, but she subsequently informed him she would no longer do his billing.  She stayed on as an employee until 2009, assisting with the eventual closure of the operation after the hepatitis C outbreak led to lawsuits, bankruptcy, and eventual criminal charges.

Desai is on trial in District Court along with Ronald Lakeman, a nurse anesthetist who worked at his clinic. Both are charged with multiple counts of criminal negligence and one count of second-degree murder for their alleged roles in six hepatitis C infections that were transmitted to clinic patients in 2007.  One of the patients has died, spurring the second-degree murder charge.


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