The doctor behind the Southern Nevada Hepatitis Outbreak, Dr. Dipak Desai, has been ordered to undergo independent evaluations to determine if he is able to stand trial.

Dr. Dipak Desai

On January 2, 2008, the Southern Nevada Health District (SNHD) discovered an outbreak of acute hepatitis C from several persons who received procedures at the Endoscopy Center of Southern Nevada. During the investigation conducted by the Centers for Disease Control and Preventions (CDC) and the Nevada State Health Division Bureau of Licensure and Certification (BLC), it was determined that the Endoscopy Center was re-using syringes when administering injectable sedatives.

This re-using of syringes introduced the blood of patients (and any viruses therein) into vials of Propofol (a sedative made by drug company Teva Parenteral Medicines and distributor Baxter Healthcare) and then the vials were then re-used transmitting any contamination to the subsequent patients. Teva sells 50-milliliter vials of Propofol while most procedures at the Centers need no more than 10 or 20 milliliters, making contamination possible.  Dr. Dipak Desai, a gastroenterologist, was the doctor behind the Centers.

On February 27, 2008, SNHD began notifying approximately 50,000 patients of the clinic of this possible exposure. The Notification consisted of patients who were treated at the clinic between March 2004 and mid January 2008, and had received anesthesia by injection. The patients were told to seek testing for hepatitis C, hepatitis B and HIV Based on observations made by BLC and the CDC an additional 13,000 individuals from a related clinic, the Desert Shadow Endoscopy Center (DSEC) were later notified and encouraged to seek testing. Thus making the number of potential infected patients 63,000.

The CDC stated that this is the largest number of patients to be recalled for a “blood exposure” in US History.

Following on the heels of this notification process, patients who were infected with Hepatitis C brought several individual lawsuits, but significant numbers of the notified patients were granted class action status and began litigation in Clark County, Nevada. Hundreds of patients sought damages from the clinics, doctors and nurses who are accused of using bad injection practices.

This litigation soon ground to a halt. As accusations swirled about who reused syringes in the facility, the owner of the endoscopy center has taken center stage, Dr. Dipak Desai. The Endoscopy Center lost its business license in February 2008, and Desai surrendered his medical license on February 29, 2008.  He filed for personal bankruptcy a short week later.

Criminal charges against Desai soon followed. He is scheduled to stand trial on March 14 on several felony charges, including racketeering, insurance fraud and neglect of patients. Two former nurse anesthetists, Keith Mathas and Ronald Lakeman, also face charges.

In both the civil and criminal cases, Desai’s attorneys have argued that Desai had a stroke in 2008 that left Desai with a cognitive impairment and diminished his ability to assist his lawyers. Both the Plaintiffs in the Civil cases and Prosecutors have challenged this claim. In fact Chief Deputy District Attorney Mike Staudaher filed court papers in June alleging that Desai is hiding “behind a curtain of mental and physical impairment so he can avoid facing consequences of his actions.”

Recently, Judge Jackie Glass (she presided over the OJ Simpson case in Nevada) ordered the appointment of two independent medical experts to conduct independent evaluations of Desai see if he is truly unable to assist in his own defense.

In honor of the NFL returning in all its glory, this is a football themed blog entry.

A federal appeals court revived part of an artist’s mission to win compensation for the creating the Baltimore Raven’s original logo.

Fredrick Bouchat claims that he designed the “Flying B” logo and submitted it to the team unsolicited. Frederick Bouchat’s drawing was the basis for the “Flying B” logo the Ravens’ used from 1996 through 1998.While a 1998 jury found that the Raven’s use of the logo was an infringement.   Mr. Bouchat had asked for profits from the team and the NFL arising from such revenue stream as ticket sales, merchandise, broadcast revenue, and other business matters.

The jury refused to allocate any percentage of revenue to Mr. Bouchat. After a successful motion by the Baltimore Ravens to limit damages to merchandise sales, the jury found that the artwork alone did not result in the sale of Ravens merchandise.

Bouchat appealed and argued that using the Flying B Logo on the players helmet and in NFL films.

The Ravens claim the logo is historical and is “fair use” under copyright law. Senior U.S. District Judge Marvin J. Garbis agreed, but an appeals court rejected part of that argument.

Judge M. Blane Michael writing for the majority stated ““Simply filming football games that include the copyrighted logo does not transform the purpose behind the logo’s use into a historical one.”

The court did rule that the Ravens can continue to use the logo in a team history display in the lobby of their headquarters because it is essentially part of a museum exhibit, which is permissible under copyright law.

The case now heads back to Judge Garbis, who can decide whether to issue an injunction.  In an injunction is issued the Ravens and the NFL will have to negotiate an agreement to continue to use the Flying B Logo.

Former U.S. Representative Jim Traficant is back. Traficant, a former Ohio Congressman, was forced to leave office in 2002 after 17 years in Congress. Why you ask? He was convicted on racketeering, bribery and tax evasion charges.  The Congress expelled him after the convictions. I particularly enjoy his “kick them in the crotch” quote made while defending himself from expulsion.

Traficant served seven years in prison and is now seeking his former seat as an Independent. He has been declared eligible to run despite earlier indications he did not have sufficient signatures to get on the ballot.

The Trumbull County Board of Elections made it official Wednesday, approving Jim Traficant to appear on the ballot in November in the race against incumbent Democrat Tim Ryan of Niles for Traficant’s old 17th District seat in Congress.

Who knows if the citizens of the Ohio 17th District will re-elect their former Representative, now that he is out of prison. His hairpiece, however, still is a crime against the law and humanity.

Looking Good Jim!

Las Vegas is in the midst of an economic storm. Nevada has the nation’s highest foreclosure rate, with one out of every 71 homes in foreclosure. Median home prices have dropped almost 60 percent.

Other numbers paint a bleak picture as well — a local unemployment rate of nearly 15 percent, for example, or the estimated 75 percent of homeowners who are upside down on their mortgage.

Like many politicians, Las Vegas Mayor Oscar Goodman, is desperate for a solution to these problems. However, Mayor Goodman’s most recent idea is questionable. Mayor Goodman wants to prohibit foreclosure sales for the next three years.

Mayor Oscar Goodman

There are several problems with this approach, least of which is the Contracts Clause of the United States Constitution.

After the Revolutionary War, the Articles of Confederation governed the United States. The Articles left the Federal Government weak. The Framers of the Constitution were fearful of the practice of “private relief.” Many states passed bills relieving citizens of their obligations to pay their debts. These practices also lead to the placement of bankruptcy law within the federal government as well.

Many founding fathers including Alexander Hamilton (he is on the ten dollar bill)

Founding Father Alexander Hamilton

were concerned that this practice would jeopardize the flow of foreign capital into the United States. The Contracts Clause was added to the Constitution to prevent state “private relief” and ensure that foreign investors could feel safe investing in the fledgling democracy.

The Contracts Clause is found in Article I, section 10, clause 1 in the Constitution. It states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. The Contract Clause applies only to state legislation, not court decisions. This is why any State or Local Government action that impairs contractual rights may be unconstitutional.

The problem with Mayor Goodman’s suggestion is that the right to foreclose is a contractual right that the lender and borrower agreed upon when the purchase of a home was negotiated. A flat ban on foreclosure sales would certainly retroactively impair the lender’s contractual rights, running afoul of the US Constitution.

The 9th Circuit recently ruled that police do not need a warrant to sneak on to your property and place a GPS tracking device on your car parked in your driveway. This ruling is now the law of the land for the 40 million plus people who live in the nine states that make up the 9th Circuit.

The 9th Circuit Court of Appeals

In 2007, DEA agents surreptitiously attached a GPS device to a silver Jeep owned by one Juan Pineda-Moreno in Oregon. Apparently the DEA agents suspected Pineda-Moreno of growing marijuana, but did not get a warrant to place the GPS device.

Pineda-Moreno was eventually arrested and charged. One piece of the evidence presented against him was data from the GPS device. U.S. Government prosecutors argued that the Jeep had been driven to various locations where DEA agents discovered marijuana being grown.  Pineda-Moreno eventually pled guilty to conspiracy to grow marijuana and is currently serving a 51-month sentence.

Pineda-Moreno later appealed on the grounds that the DEA violated his reasonable expectation of privacy by sneaking onto his property and placing the GPS device on his car in his driveway without a warrant.

Prosecutors argued that the use of the GPS tracker did not require a warrant and is no different than other means of surveillance such as tailing a car. The Court agreed with this position, not one but TWICE. As is the standard procedure a three-judge panel affirmed the conviction in January. Pineda-Moreno then requested that the full court review the decision. They again upheld his conviction earlier this month.

What is particularly curious about this decision is that the 9th Circuit is generally considered the most liberal of the Circuit Courts. The Court seems to be saying that there is no expectation of privacy on one’s driveway. This is akin to the Supreme Court’s ruling in California v. Greenwood.

In this case, the Laguna Beach, California, police received information regarding possible drug trafficking activity at the residence of one Billy Greenwood. The police then asked the trash collection to turn over the trash from the home without mixing it with other trash. A subsequent warrantless search revealed evidence of drug use and was the basis for a search warrant of the residence and later drug charges. The Supreme Court ruled that there is no expectation of privacy in one’s trash placed for collection and upheld the conviction.

The GPS tracking issue is not resolved however, because a federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant. The Supreme Court will likely resolve this split in the appellate courts in the future.

Until then, residents of the 9th Circuit cannot expect privacy by relying upon private property alone. Erecting a fence, posting no trespassing signs or parking in the garage appears to be the only means to maintain an expectation of privacy.

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