Lawsuit lottery: Outrageous judgment in hepatitis trial makes case for caps

Move over, entertainment industry. You’ve got company when it comes to unmatched theatrics and fantasy. Las Vegas is the undisputed jackpot justice capital of the world.

On Tuesday, a Clark County District Court jury slapped local insurer Health Plan of Nevada with $500 million in punitive damages for its nonexistent role in the spread of hepatitis C at Dipak Desai’s endoscopy clinic six years ago. The breathtaking stupidity of this verdict would be comical if it didn’t have such costly ramifications for every resident of this valley.

The case is part of the ongoing shakedown of every entity that did business with Desai. He knowingly engaged in disgustingly unsafe infection control practices to save a few bucks, sickening several of his patients and forcing tens of thousands more to be tested for blood-borne diseases. But Desai’s pockets are only so deep, and whatever wealth he amassed has been spent delaying his criminal trials, which may or may not finally start this year.

So plaintiffs lawyers looking for payouts have targeted the companies that made and distributed the anesthetic used in outpatient colonoscopies, and HPN for including Desai in its provider network. Teva Pharmaceuticals was hit with $800 million in judgments in just three cases, and decided to settle those and more than 100 other lawsuits for $285 million. HPN faces more than 40 additional frivolous lawsuits.

It’s easy to mock jurors who are willing to award such enormous sums to so few parties, fantastical numbers that have no nexus to actual, economic damages. The jurors clearly have no idea they’ve voted to make health care even more unaffordable for themselves and everyone in this community, that they’ve declared all health insurers are now liable for the malpractice of physicians and health care providers.

But the jurors are obligated to base their decision only on what they hear in the courtroom. And in the HPN case, as with the cases against the drug companies, plaintiff-friendly judges effectively made it impossible for the business to defend itself.

In the cases against the drug companies, District Judge Jessie Walsh didn’t allow jurors to hear evidence that Desai and his staff engaged in horrific misconduct and ignored FDA-approved warnings on medicine vials against re-use, and that hepatitis C can be spread in other ways. In the HPN case, District Judge Timothy C. Williams barred the jury from hearing similar evidence, as well as evidence that showed how insurers rely on numerous private and government regulatory site visits and the resulting credentialing and licensing, which uncovered no improper practices at Desai’s clinic over several years. Jurors also weren’t told other juries had determined the drug companies were at fault.

Those rulings allowed plaintiff lawyers Robert Eglet and Will Kemp to build a case around the demonization of health insurers, which are about as popular with the public as, well, lawyers.

“You cannot go around grinding the doctors’ reimbursement rates down and expect to be able to provide quality health care to your insured members. The health care industry needs to wake up,” Mr. Eglet declared after the verdict was read Tuesday. So Desai betrayed all his training and all medical ethics solely because of HPN’s reimbursement rates? If that were true, every doctor and hospital in this valley would be killing off patients.

Desai’s despicable behavior was a black eye for the medical community. But the trial bar’s response, and the judiciary’s eagerness to enable lawsuit lotteries, has been just as embarrassing for this valley. It’s a warning to businesses everywhere: You won’t get a fair shake in the Nevada justice system — not even close. Rest assured, our casinos offer fair play. But the courts are rigged.

If these verdicts don’t persuade the Legislature to enact major tort reform, with hard caps on punitive damages, nothing will.