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Nov. 06, 2008
Copyright © Las Vegas Review-Journal

Class-action lawsuit rejected in hepatitis C outbreak

By PAUL HARASIM
REVIEW-JOURNAL
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Eugenia Hedstrom and attorney Robert Cottle on Wednesday discuss a lawsuit against the Endoscopy Center of Southern Nevada, where Hedstrom was treated.
Photo by Craig L. Moran.

After 70-year-old Eugenia Hedstrom was notified last winter by health officials that she should get tested for hepatitis and HIV, she worried about dying.

Night and day. Every day. Until she got word a couple of weeks later that tests showed she was in the clear.


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    • "When you get a letter like that, it scares you like you wouldn't believe," Hedstrom said Wednesday as she sat in the offices of her attorney, Robert Cottle. "I had friends who got letters too, and they were scared out of their minds. It's all you think about. It's hard to do anything."

    Hedstrom, like tens of thousands of Southern Nevadans from 2004 to 2008, had gone to the Endoscopy Center of Southern Nevada for colonoscopies or other endoscopic procedures.

    In February, health officials said at least six people contracted hepatitis C during procedures at the clinic because staff had contaminated single-use vials of medication and used them on multiple patients. The Southern Nevada Health District urged 40,000 clinic patients to get tested for potentially fatal blood-borne diseases.

    It wasn't long before lawyers sought out patients who had visited the clinic. Attorneys, believing thousands of experiences were similar to those voiced by Hedstrom, agreed to support a single class-action case for the thousands of patients who were not infected. About 6,000 former patients came forward.

    With the clinic having only a $3 million insurance policy to cover such claims, Cottle said former patients wouldn't be eligible for much, but "at least they'd get some kind of compensation for their stress. If the class action covered just my 4,500 clients, each would get just a little over $600."

    A judge in the case would award attorneys' fees, Cottle said.

    But on Tuesday, District Court Judge Allan Earl put an end to the attorneys' plans to prepare one lawsuit with thousands of clients, denying their motion in open court to certify the class-action lawsuit.

    Will Kemp, one of the lead attorneys for the plaintiffs, said he was stunned.

    "I can't believe we'll be taking thousands of the same kind of cases to court," he said. "The courts will be all tied up for years."

    Cottle said the judge, who hadn't issued his written order Wednesday, wasn't convinced that all the noninfected former patients wanted to be part of a class-action lawsuit. Nor was the judge sure that all the former noninfected patients had similar experiences, Cottle said.

    A motion filed by defense attorneys for the endoscopy center in opposition to class certification noted that two named plaintiffs were deposed by defense attorneys and admitted they didn't suffer any mental anguish or emotional distress.

    So, defense attorneys argued, it wasn't possible to claim emotional distress on a classwide basis. They also said it was unfair to argue that many former patients needed to be compensated for hepatitis and HIV testing because many had received it free.

    Cottle believes defense attorneys fought certification of the class-action lawsuit solely to discourage other former patients from coming forward.

    Clinic attorney Drew Cass wouldn't comment Wednesday.

    Cottle said plaintiffs' attorneys can have Earl's ruling reviewed by the Supreme Court. If the ruling is not overturned, some cases could be consolidated, 60 to 80 at a time, or cases could go one by one.

    "That $3 million will go real fast that way, and very few will be compensated," Cottle said.

    Hedstrom isn't pleased.

    "Why can't people be dealt with fairly?" she said. "I didn't ask to be put at risk. I think we deserve something for that."

    Contact reporter Paul Harasim at pharasim@reviewjournal.com or 702-387-2908.

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    K2 wrote on November 06, 2008 02:22 PM: I'm with classy on this one. There are too many stresses in everyday life. As adults we are supposed to be grown up enough to deal with them. Leave the money for those truly harmed.


    Dustin wrote on November 06, 2008 10:40 AM: Classy,

    I agree that there isn't a long-term harm from being injected by a dirty needle but then not getting anything, but what would someone have to pay you to take that risk? $500 for a dirty injection and then 3 months of waiting to see if you got Hep C? $1000? 3 months of being afraid to sleep with your spouse or use the same bathroom in case you cut yourself shaving?

    The fact that these people didn't get Hep C doesn't mean they didn't suffer a little bit. $600 doesn't seem unfair to me.


    Classy Action wrote on November 06, 2008 10:15 AM: I wholeheartedly support this ruling. These people did not contract hepatitis. They suffered no harm. This is nothing but a money grab. Leave the insurance money for the people who were actually harmed here.
    Gee, I'm worried about keeping my job. Who do I sue for the anxiety over that? Oh, my car repair bill is too high. I guess I'll sue GM for distress.
    "I can't believe we'll be taking thousands of the same kind of cases to court," Neither can I. These lawyers won't be doing that, thank you.
    The people who contracted Hep C should pursue their cases and get compensation. Sorry, but these others weren't harmed. And no one forced them to sign on with a lawyer.


    Croft Woodruff PhD wrote on November 06, 2008 07:48 AM: In the early 1970's, Vitamin C's powerful anti viral activity was thoroughly demonstrated by Japanese MD's in two hospitals in the Osaka Region of Japan eliminated serum hepatitis (now known as Hepatitis C) contracted from contaminated blood in transfusions administered after major surgery. A doctor at Saga University took the trouble to look at the vitamin C status of the surgical patients and found those susceptible to hepatitis had the lowest intake of vitamin C as opposed to those taking 3,000 milligrams or more daily. Subsequently, the patients were given 6,000 milligrams of vitamin C a few days prior to and several days after surgery and blood transfusions. (Murata, A. Virucidal Activity of Vitamin C for Prevention of Viral Diseases. Proceedings of the First Intersectional Congress of the International Association of Microbiological Societies, 1975, Volume III. Tokyo University Press. Pp. 432-442)

    Vitamin C has a long history of anti viral and immune boosting activity. Cheap, effective and non toxic. Unfortunately it is non patentable and therefor not as profitable as the expensive, toxic and mostly ineffective patented anti viral preferred by a medical profession blinkered by flawed science and ignorance about virology. An example of many doctors' ignorance of how viruses work, is the wrongful prescribing of antibiotics for viral infection leading to the proliferation of deadly antibiotic resistant bacteria such as flesh eating disease.


    DJ wrote on November 06, 2008 06:57 AM: Get the judge to do what was done in the dow corning case, limit the attorney fees up front.

    Further, did any of you think Desai would be held liable? He is surrounded by juice. If Harry would have contracted hep C from Desai would charges have been filed by now? Or, if the senior judges he invests with had been harmed by this, do you think things would be different?

    If you and I did not have enough insurance I bet they would be seeking our personal assets.

    Lets see how fast attorneys start dumping and billing clients.

    Welcome to the Nevada Judicial Hellhole.


    Furious wrote on November 06, 2008 05:49 AM: What the article doesn't mention is that the lawyers who asked for a class action case can now charge their clients for work done. The lawyer I went to charged $175 an hour. It was in the small print. When I asked about it I was told, "Don't worry. With a case this size it will definitely become a class action." Naturally I declined to retain the lawyer. A lot of other people didn't. I suspect those folks will soon be getting some hefty bills.


    Chris wrote on November 06, 2008 04:24 AM: Problem with class action suits is that the only people making money from the win is the lawyers.


    Frank wrote on November 06, 2008 03:53 AM: By all means, this ruling should be appealed...and then a special prosecutor appointed to see who has been unduly influencing his honor Mr. Earl.