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COA upholds $300,000 verdict, addresses 'patient abandonment'

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The Indiana Court of Appeals has ruled on the first of hundreds of medical malpractice claims filed against a former ear-nose-throat specialist in Merrillville, upholding a $300,000 jury verdict and also delving into novel legal issues that haven’t been widely addressed by the state’s appellate courts.

A 33-page opinion came Wednesday from the three-judge appellate panel in Mark S. Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, and Nose and Sinus Center v. William Boyer, No. 45A03-1011-CT-598.

This suit is one of more than 350 malpractice claims have been lodged against Mark Weinberger in state and federal courts, with most encompassing similar accusations: that he allegedly performed unnecessary surgery on people and those procedures either weren’t done or were performed poorly.

All together, the claims represent a pattern of apparent medical malpractice stretching from November 2002 to September 2004. Weinberger successfully ran the Merrillville Center for Advanced Surgery LLC and Nose and Sinus Center LLC, but some concerns about potential malpractice began surfacing toward the end of that period. Court documents allege that everything appears to have caved in when one patient died in September 2004. Days later Weinberger disappeared during a family trip to Greece. Claims from former patients mounted during the next five years and the sinus specialist was featured on “America’s Most Wanted” before being found hiding in a tent in the Italian Alps. He stabbed himself in the neck with a knife before finally being extradited from Italy to the U.S. on federal criminal health care fraud charges in December 2009.

While Weinberger faces hundreds of medical malpractice claims by former patients, he also faces a trial on 22 federal criminal counts of billing fraud and $5.7 million in creditor claims for his past conduct. A trial is set for early next year, after U.S. Judge Philip Simon in the Northern District of Indiana last year rejected Weinberger's plea deal that would have sentenced the former doctor to four years in prison rather than the combined stretch of more than 200 years allowed under federal guidelines.

Attorneys say that 46 medical malpractice cases are pending in Lake Superior Court and more than three dozen are set for trial in the next two years, while more than 200 claims are ongoing before Indiana medical review panels.

In this first civil appeal addressing the underlying medical malpractice and legal claims against Weinberger, the court addressed the case of Gary resident William Boyer, a heavy equipment operator who Weinberger didn’t tell about an irregular heart beat during pre-operative tests to treat what the doctor falsely said were bloody sinuses. Boyer found out about the heart irregularity a year later when his heart was failing. The case went to trial in August 2010 and resulted in a $300,000 jury verdict.

On appeal, the judges found no error in how the trial court denied a motion for change of judge after the original presiding judge had to transfer the case five days before trial because of a family emergency; that the trial court didn’t abuse its discretion in not striking two jurors for cause and for admitting certain evidence and testimony presented by Boyer’s trial counsel.

Most significantly, the appellate court focused on the issue of “patient abandonment” that hasn’t been addressed in Indiana before now. Weinberger argued that abandonment is an independent tort, and out-of-state caselaw says the abandonment must happen at “a critical stage” of the medical care. Boyer said the abandonment is a part of the underlying medical malpractice and exacerbated the malpractice. The appellate judges sided with Boyer and found the abandonment should be evaluated in light of the medical malpractice suit’s standard of care.

“As only a claim for medical malpractice was made and no separate tort claim for patient abandonment was raised, the Weinberger Entities’ motion for judgment on the evidence was not directed at a critical or essential element of the medical malpractice claim but rather at an underlying issue with respect to the standard of care,” Judge Patricia Riley wrote.

The court also held that the trial court properly allowed evidence of Weinberger’s conduct toward other patients and how his flight out of the country was used during trial. The appellate court disagreed that details surrounding Weinberger’s flight only served to vilify him in front of the jury.

 In upholding the $300,000 jury verdict, the appellate court found that the award wasn’t influenced by passion or prejudice and that it wouldn’t be just to compare this case and damages amount to other cases – as Weinberger’s counsel recommended.

“While it may be tempting to engage in a comparative analysis to aid us in the difficult task of evaluating the award at issue in this case, to do so would be a significant departure from Indiana’s historical regard for the uniqueness of every tort claim and the belief that compensatory damage assessments should be individualized and within the province of the factfinder. After reviewing the testimony and evidence presented to the jury it is clear that such a departure is not necessary here.”
 

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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