"Dirty Scope" Defense Allowed in Hepatitis C Outbreak Lawsuits

Drug companies defending themselves in the Nevada hepatitis C outbreak lawsuits can argue that dirty scopes, not dirty syringes reused in propofol vials, spread the virus, the Nevada Supreme Court has ruled.

However, this argument must be presented scientifically, by experts certified in the field of decontaminating and sterilizing medical instruments, not circumstantially, by nurses describing facilities' unsanitary conditions.

The question as to whether defendants can present juries with alternative theories for the outbreak's origin, and who is qualified to raise those theories, has temporarily sidelined the trials while judges considered their implications.

State health investigators contend that the 2008 outbreak spread primarily due to the reuse of syringes, sometimes contaminated by hepatitis-infected patients, and single-dose vials of propofol at three Las Vegas-area gastrointestinal clinics once run by Dr. Dipak Desai.

The pharmaceutical defendants argue that improper reprocessing practices and contaminated endoscopes may also have played a role. A court filing quoted in a published report cites a nurse's description of the overly reused cleaning fluid in one clinic: a "primordial soup of bacteria, blood, fecal matter, stool, viruses ... and just a disgusting mess."

The report, which appeared in the Las Vegas Review-Journal, also quotes an attorney for a patient in an outbreak lawsuit that concluded last year, who suggests that the companies' alternative defense was sparked by the results of the earlier lawsuit.

In that case, propofol maker Teva and distributor Baxter agreed that dirty syringes and reused vials infected a clinic patient. "Then they saw how the jury reacted" - it awarded the patient $500 million - "and they are now going with the dirty scope theory."

The companies didn't respond to the newspaper's request for comment.

The Southern Nevada Health District has conclusively linked 9 hepatitis C cases to the clinics, with the possibility that more than 100 other cases originated there.

Several dozen civil trials involving infected patients are scheduled to begin in coming months. The criminal prosecution of Dr. Desai and two nurses is awaiting a judgement on Dr. Desai's mental fitness to stand trial.

David Bernard