Desai found competent to stand trial

District Judge Kathleen Delaney issued a four-page decision Thursday finding Dr. Dipak Desai competent to stand trial on criminal charges stemming from the 2007 hepatitis C outbreak.

Delaney ordered the case returned to District Judge Donald Mosley for a March 12 trial.

Questions have arisen, however, about whether Mosley will be presiding over the trial. He has indicated he is retiring from the bench but has not given a date.

At a hearing before Delaney last week, prosecutors presented witnesses who said Desai was "malingering" or faking his physical impairments from two strokes to obstruct the criminal case.

Three state medical experts all testified under oath that Desai was "exaggerating" the effects of the strokes.

The three experts, part of the team that evaluated Desai for six months at Lake's Crossing, the state's secure mental hospital in Sparks, all concluded during their testimony that Desai was competent to face a jury on the criminal charges.

In her ruling Thursday, Delaney agreed: "The testimony provided by the Lake's Crossing center evaluators at the Jan. 27, 2012, hearing consistently and overwhelmingly established defendant's sufficient present ability to understand the charges against him and to assist counsel in his defense, and the defendant provided no credible evidence to the contrary."

Desai's lead lawyer, Richard Wright, has argued that there were "serious flaws" in the evaluation process and that Desai remains unable to assist his defense team in the complicated criminal case.

Wright could not be reached for comment.

Chief Deputy District Attorney Mike Staudaher, who is prosecuting Desai, said he was pleased with the decision.

"I think it was an appropriate one," Staudaher said. "We're looking forward to getting him into court where he can be tried."

Delaney said in her decision that the "only impediment" to Desai's competency is "self-reported memory loss" of the facts surrounding the criminal charges as a result of the strokes.

"Memory loss itself, even if true, is not a bar to prosecution of an otherwise competent defendant," she wrote. "Further, there is no indication in the present record that defendant and his counsel would be unable to reconstruct the events of the alleged crimes for which he is accused or to raise any possible defenses to the evidence against him."

Delaney said tests given Desai at Lake's Crossing suggested that he was "feigning his memory deficits to a greater degree than would be expected from the neurological damage caused by his strokes."

While at Lake's Crossing, Desai's evaluators reviewed all of his medical records and regularly observed his "behavior and functional abilities," Delaney said.

"At no time, other than when directly questioned by his evaluators, did defendant actually exhibit any cognitive deficits," she said.

Desai, 62, and two of his nurse anesthetists, Keith Mathahs and Ronald Lakeman, are facing felony charges, including racketeering, insurance fraud and neglect of patients.

The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai's clinics. Health officials blamed the outbreak on nurse anesthetists reusing vials of the sedative propofol that were contaminated by syringes used on patients with hepatitis C.

Desai also is to be tried in federal court on May 22 with Tonya Rushing, his clinic manager, on one count of conspiracy and 25 counts of health care fraud.

A federal indictment alleged that the pair carried out a scheme from January 2005 through February 2008 to inflate the length of medical procedures and overbill health insurance companies.

The competency issue has not yet been raised in the federal case.

In testimony last week, Dr. Steven Zuchowski, a psychiatrist who had the most contact with Desai during his Lake's Crossing evaluation, said Desai did not cooperate fully with his evaluators and tried to make himself look bad.

Zuchowski acknowledged that strokes in 2007 and 2008 damaged Desai's brain, causing him memory and other cognitive problems but said that he still "meets the requirements" to stand trial.

Sally Farmer, a clinical and forensic psychologist, testified that she, too, concluded that Desai was exaggerating his physical impairments. She said Desai scored so low on several tests that she came to the conclusion that he was deliberately attempting to do poorly.