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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. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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