In the slow-moving trial of Dipak Desai, 63, and Ronald Lakeman, 65, now in its 8th week in Las Vegas, Clark County Judge Valerie Adair on Tuesday denied a defense motion for a mistrial, but cited the prosecution with prosecutorial misconduct and sternly reprimanded them. On Monday a key witness for the prosecution recanted his claim that he saw a defendant reusing needles and syringes on multiple patients, prompting another request for a mistrial and its denial.
The Judge’s ire was raised after Chief Deputy District Attorney Mike Staudaher asked on-the-stand witness Tonya Rushing, Desai’s former clinic manager, questions leading her to reveal to the jury that she and Desai are also under federal indictment, a fact which the judge had previously ruled inadmissible due to its prejudicial effect against the defendants. Desai’s lead attorney, Richard Wright, said he was “flabbergasted” that Staudaher had solicited the damaging information from Rushing on the witness stand. He argued it amounted to impermissible evidence and severely prejudiced his client in the eyes of the jury, and there was no way to un-ring the bell short of a mistrial. Rushing is due for trial with Desai later this year in federal court on racketeering, insurance fraud and patient neglect charges.
But after 90 minutes of arguments before the judge outside the presence of the jury, Adair ruled that Staudaher had committed misconduct, but that it didn’t rise to such a level that would require a mistrial. “In my honest opinion, I believe Dr. Desai can get a fair trial,” Adair said. The judge warned the experienced Staudaher to be more careful with his witnesses. “These are questions a rookie would ask,” Adair said. When the jury came back into the room Adair told them the questioning “constituted prosecutorial misconduct” and that it is “irrelevant” to the state’s case whether Desai is facing federal charges.
On the stand Rushing broke into tears as she described finding out that anesthesia times were being “pre-charted” and exaggerated at Desai’s clinics. Insurance companies and patients are billed for anesthesia services based on the amount of time the anesthesia provider spends caring for the patient. Rushing says she learned of the alleged fraudulent practice in February 2008 as health officials were publicly disclosing what they claimed was an outbreak of Hepatitis C amongst the clinic patients. “When this all came about, it was very overwhelming,” a tearful Rushing said. “I worked for him (Desai) for a very long time.” Rushing,was given limited immunity by federal prosecutors in the pending federal action for testifying in the state case, and was not charged by the state.
Key Witness Recants Key Testimony
On Monday former nurse Rod Chaffee, spent the morning under intense cross-examination from defense attorneys regarding his previous testimony implicating Lakeman as responsible for contaminating propofol with hepatitis C and transmitting it to patients. (It is worth noting that Lakeman never even treated Rodolfo Meana who died of Hepatitis C prompting the 2nd degree murder charge against him.)
“On Friday, you testified that you witnessed Mr. Lakeman reusing needles and syringes on multiple patients?” asked Lakeman’s attorney, Frederick Santacroce.
“Correct,” Chaffee replied.
“But it wasn’t true, correct?” Santacroce asked.
“Correct,” Chaffee said.
“I didn’t really realize I answered that question the way I did until I got home and … reflected on my testimony,” Chaffe admitted under questioning by Wright. “I witnessed Ronald Lakeman accessing open bottles of propofol with needles and syringes. That’s as far as I can take it.”
Chaffe had claimed on the stand and during multiple interviews by the FBI, Southern Nevada Health District officials, and Las Vegas police in 2008 that he had witnessed Lakeman re-using NEEDLES on multiple patients. His testimony was the ONLY evidence that needles were used on more than one patient. This now recanted testimony was THE key to the prosecution’s case related to the allegations of patient neglect and Hepatitis C contamination, as well as the murder charge which was already strange enough since Lakeman never met the decedent. Only through the re-use of needles would it be plausible that a vial of propofol could become contaminated with Hepatitis C. Multiple use of the single dose vial with sterile needles and syringes for each use simply could not result in contamination. At this point Law Med sees no direct evidence whatsoever supporting the prosecution’s theory. But it will be up to the defense team to educate the jury as to why exactly the needle issue is such a key element of the case, and that the idea of reusing needles from one patient to the next is such an absurd and unfathomable practice to any anesthesia professional.
Chaffe was questioned about his checkered past, telling the jury he had trouble with memory and personal relationships after his wife died in July 2006, conceded he was accused of inappropriate conduct with co-workers, used derisive names referring to a supervisor, was fired from his job at the clinic in 2007 after making a remark about a bomb, and was once arrested during an investigation of allegations that a house guest of his had a methamphetamine lab in his bedroom. His firing pre-dates the period in 2007 that officials say the Hepatitis C contamination occurred.
Outside the jury’s presence on Monday Judge Adair denied Santacroce’s assertion that Chaffee perjured himself and motion for a mistrial saying she did not think that prosecutors knew Chaffe was going to change his testimony or the story he had told officials on numerous occasions.
As we previously reported, other witnesses have cast doubt on the prosecution’s theory that contamination of propofol led to a Hepatitis C outbreak, or that there was in fact an outbreak at all. And all of this is before the defense has called a single witness.
Desai and Lakeman are being tried on courtroom on 28 charges, including 2nd degree murder, criminal neglect of patients, theft and insurance fraud. The murder and neglect charges focus on the cases of seven hepatitis infections health officials say are linked to Desai’s former Endoscopy Center of Southern Nevada. One of the patients, Rodolfo Meana, died last year prompting the murder charge. Prosecutors claim Desai created a work environment that placed profit above the well-being of patients which led to unsafe injection practices of the anesthesia drug propofol and the outbreak of the blood-borne hepatitis C virus.
, Tonya Rushing
, dipak desai