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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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