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Criminal Charges Could Void Victim Awards in Hep C Lawsuits

Posted by Jane Akre
Friday, March 21, 2008 1:52 PM EST
Category: Major Medical, Protecting Your Family
Tags: Medical Malpractice and Negligent Care, FDA and Prescription Drugs, Medical Devices, Wrongful Death

CNNs N ancy Grace show discusses how criminal charges could wipe out any civil judgments.

Image: CNN's Nancy Grace

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IMAGE SOURCE: CreativeCommons.org/with permission from Flickr/ Nancy Grace 

With the FBI, Las Vegas Police and District Attorney’s office all looking into criminal charges against the clinic whose practices have led to the largest public health notification in history— comes disclosure that those charges could supercede any monetary awards from patients who turn up positive for hepatitis C, B or HIV.

Hundreds of former patients have joined class action lawsuits against the Endoscopy Center of Southern Nevada, Dr. Dipak Desai, co-owner who, CNN’s Nancy Grace adds on her program, just moved into a four million dollar luxury home.

On her cable program, Grace asked her guest attorneys about any assault, aggravated battery or reckless endangerment charges that could be filed against nurses, managers and assistants of the clinic who knowingly used unsafe public health practices on patients.

Attorney Ray Guidice suggests, “if you have knowledge that something you’re doing can reasonably lead to harm you can be charged.”

However he adds that criminal actions can void insurance policies coverage for negligence.

That’s because insurance policies cover negligence or gross negligence and not intentional criminal acts.  

Geoff White comments on how criminal charges could undermine civil lawsuits.

Attorney Geoff White  

White, Meany and Wetherall LLP/ Courtesy Geoff White

Attorney Geoff White of White, Meany and Wetherall LLP, (a partner of Injuryboard.com) explains to IB News:

“If the evidence in the cases show that the nurses and doctors at the Endoscopy Center of Southern Nevada "intended" that their patients would be exposed to the risk of getting hepatitis C or HIV, that would exclude coverage under the policy, and it would also make their conduct "criminal.

“The "gray area" is if the clinic workers acted in reckless disregard of the consequences of their actions, i.e. they didn't "intend" that their patients would be exposed to the risk of getting hepatitis C or HIV, but they KNEW that was a possibility from their actions and they threw caution to the wind. 

“The insurance company would argue that this was "intentional" or otherwise so reckless as to border on the intentional such that there should be no insurance coverage.”

But White, whose firm has several hundred former patients enrolled in a class action lawsuit, says he would argue that such conduct was ALSO negligent and therefore covered.

To avoid paying any applicable claims, the insurance company and the Court would both have to agree that the clinic workers’ actions were intentional.

White adds that if intentional actions were covered by insurance, “everyone would be beating each other up without restraint or financial deterrent.”

So far there are seven confirmed cases of hepatitis C contracted from the Endoscopy Center of Southern Nevada and another clinic owned by Dr. Dipak Desai.

As a cost-cutting measure workers were told to reuse syringes which likely contaminated a vial of sedative used on multiple patients.   

40,000 are being tested for hepatitis C, B and HIV and those results won’t be in for months.

Also on the CNN program, attorney Guidice says there may be another avenue to charge Dr. Desai.

There are more doctors sitting in jail today because of tax fraud charges, he says, which are easier to prove than criminal charges and may be the avenue prosecutors choose to put Dr. Desai in jail.

“There may also be insurance fraud, Medicaid fraud Medicare fraud if these were separately billed.  It sounds insignificant but 40,000 needles and syringes that are billed to an insurance company and this doctor is being paid for that, that’s a slam dunk insurance fraud case “says Guidice. #


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