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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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