Dipak Desai’s voice was barely audible as he shook his head and appeared to say no when asked if he understood the charges handed up by a grand jury on April 27.
But U.S. Magistrate Judge Carl Hoffman accepted defense attorney Richard Wright’s assurances that his client was familiar with the charges, even if he didn’t understand them.
“I do not believe he is competent as we stand here today,” Wright said before entering the plea. “We’re in the midst of competency hearings in state court.”
The 61-year-old former gastroenterologist and his former clinic business administrator, Tonya Rushing, are accused of defrauding insurers from January 2005 through February 2008.
They are accused of overbilling for anesthesia and inflating the length of medical procedures at Desai’s businesses, the Endoscopy Center of Nevada, Gastroenterology Center of Nevada and Desert Shadow Endoscopy Center in Las Vegas.
Desai’s appearance in federal court came after the State Board of Medical Examiners member returned from nearly six months of mental health evaluation at the Lake’s Crossing state facility in Sparks.
Officials there deemed Desai fit for trial, but Wright told a Clark County District Court judge on Tuesday that he doesn’t believe Desai can understand or assist in his defense.
The defense lawyer cited findings by two court-appointed medical experts in Las Vegas who found Desai had been incapacitated by strokes and heart ailment before he was sent to Sparks.
Rushing, 44, pleaded not guilty in April in the federal case. She isn’t charged in the state case, which accused Desai and two former nurse anesthetists of infecting seven people with incurable and potentially deadly hepatitis C by reusing endoscopy scopes and vials of the injected anesthetic propofol during outpatient procedures.
Desai, Keith Mathahs and Ronald Lakeman have pleaded not guilty to racketeering, insurance fraud and patient neglect charges. A state judge was set review Wright’s competency challenge on Nov. 15, and that trial was scheduled for March.
Desai’s trial on the federal charges was set for May 22.
Rushing’s lawyer, Robert Draskovich, said his client wants a resolution to the case. “Whether Mr. Desai is competent or not, we’re prepared to go to trial in May,” Draskovich said.
The federal indictment alleged that nurses at the clinics were instructed to falsify anesthesia times for endoscopies and colonoscopies by listing 31 minutes for each procedure, even though they rarely took that long. It said Desert Shadow nurse anesthetists saw between 60 and 80 patients a day, making it impossible to have taken 31 minutes with each.
In addition to the criminal conspiracy and health care fraud charges, federal prosecutors seek to seize $8.1 million in assets from Desai and Rushing.
State and federal investigations began in 2008, after health officials linked nine hepatitis C cases to Desai clinics and said another 105 cases were possibly related. Investigators traced infections to the reuse of needles and vials of medication on multiple patients.
Desai later surrendered his license to practice medicine in Nevada.
The first of hundreds of product liability lawsuits by former clinic patients infected with hepatitis have reached state court, where juries in three cases have held pharmaceutical companies liable for almost $787 million in damages to nine plaintiffs.
Drug companies have appealed the first case to the Nevada Supreme Court.