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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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