By BRIAN HAYNES
REVIEW-JOURNAL
Patients suing the Endoscopy Center of Southern Nevada for
potential exposure to blood-borne diseases will be allowed to claim
damages for emotional distress in a class-action lawsuit, a judge
ruled Tuesday.
Lawyers for the clinic linked to a hepatitis C outbreak argued
that the patients who didn't contract a disease could not claim
emotional distress unless they suffered a physical injury.
"In this case ... I don't believe a physical injury was
suffered," said David MacDonald, who represents the Endoscopy Center
and the affiliated Gastroenterology Center of Nevada.
But District Judge Allan Earl disagreed in denying the clinic's
motion to dismiss, saying the mental anguish of potential exposure
could lead to physical symptoms.
The judge did agree with MacDonald that the clinic should not be
held liable under product liability and warranty laws because the
clinic did not sell vials of anesthesia and other supplies to the
patients. Earl dismissed lawsuit claims under those laws, while
allowing the negligence claim to go forward.
Lawyer Will Kemp, who is leading the class-action lawsuit, argued
that the clinic was a seller of medical supplies, specifically
Propofol, the anesthesia used in the clinic's procedures. Kemp said
the clinic billed patients $200 for each 50 milliliter vial after
buying them for $33 a piece.
But Earl worried about the potential impact of a ruling that
would hold medical providers liable for every medical supply they
used.
"If the hospital has to be responsible for every one of these
(products) on a product-liability basis, the burden would be
overwhelming," Earl said in dismissing the claims.
In an earlier ruling Earl dismissed Nevada Mutual Insurance Co.,
which provided medical malpractice insurance to the Endoscopy
Center, from an unrelated lawsuit.
Lawyer Robert Cottle, representing the patients who filed the
lawsuit, said the insurance company had a responsibility to inspect
and evaluate the clinic's procedures before insuring it.
He also suggested that Dr. Dipak Desai, majority owner of the
Endoscopy Center and a former Nevada Mutual Insurance board member,
might have used his influence to avoid such oversight.
But Alice Campos Mercado, a lawyer for Nevada Mutual Insurance
Co., said the company had no duty to the clinic's patients or to
tell its doctors what to do.
"It's an insurance company. They are not medical doctors," she
said.
Earl agreed and dismissed the company from the lawsuit, saying
the insurance company had a responsibility not to patients but its
shareholders.
Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-
383-0281.
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