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Disgraced 'Nose Doctor' keeping lawyers busy

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Authorities found fugitive Indiana doctor Mark Weinberger camped in deep snow on a mountain in the Italian Alps in December 2009. Now attorneys are digging through the resulting avalanche of criminal charges and more than 350 malpractice lawsuits.

The complexities and volume of the work has tested the resources of two firms handling the bulk of the action and given young and veteran malpractice attorneys unprecedented opportunities to hone their jury trial skills.
 

weinberger-mark-mug.jpg Dr. Mark Weinberger vanished from a successful ear, nose and throat practice in 2004 and was found in Italy five years later.

Weinberger once was known as the jet-setting “Nose Doctor” of Merrillville, but he’s since been dubbed “America’s worst doctor” by some news organizations. Weinberger isn’t saying why he abandoned his thriving ear, nose and throat practice, according to attorneys who’ve deposed him for the first trials involving the malpractice suits. They say he isn’t saying anything.

“I would say of the thousands of questions asked of him, the only one he answered is ‘State your name,’” said Barry Rooth, a name partner of the Merrillville law firm Theodoros & Rooth. Weinberger takes the Fifth on subsequent questions such as where he went to school, attorneys who’ve deposed him said.

Weinberger’s defense attorney James Hough, of Merrillville, responded to requests for comment with an email. “At the present time, as these cases continue to be litigated, I believe it would be better for me to resist discussing the cases or our procedure for defending them.”

Rooth said that in 2004, he received referrals about potential malpractice suits involving Weinberger patients. Rooth suspected Weinberger might be performing unnecessary surgeries or outmoded ones, including drilling holes in patients’ sinuses, that might have worsened their conditions. Rooth said Weinberger disappeared a few months after the law firm requested additional patient records.


rooth-phil-mug.jpg Rooth

While a fugitive, Weinberger was charged with 22 federal counts of insurance fraud alleging that he billed his malpractice carrier for surgeries that he didn’t perform totaling about $350,000. He pleaded guilty and agreed to serve a four-year sentence, but a federal judge rejected the deal.

Meanwhile, Weinberger’s malpractice carrier has sued him, claiming he was uncooperative and his actions void their duty to defend. Weinberger in turn sued the carrier, claiming bad faith. Still to be untangled in the federal courts in northern Indiana is who will pay mounting judgments. The Indiana Patient’s Compensation Fund, which pays malpractice judgments up to $1 million above the insurance cap of $250,000, also is involved in the Weinberger cases in federal court.

Ultimately, Cohen & Malad in Indianapolis joined as co-counsel with Theodoros & Rooth as the malpractice claims poured in. Together, they are representing 297 claims against Weinberger, only two of which have been settled, both involving child patients. Seven have gone to trial – all with judgments for the plaintiffs – and 288 more cases are pending. The remainder of cases filed to date are represented by law firm Kenneth J. Allen & Assoc.

Plaintiffs have won judgments ranging from $40,000 to $390,000 and the average is about $177,000, according to Cohen & Malad partner David Allen.

‘Piece of Indiana history’

The load of Weinberger cases has given Cohen & Malad’s young lawyers rare experience. “Because of the number of cases,” said partner David Cutshaw, “young lawyers have to get in there and mix it up, and I think that’s good.”

Attorney Kelley Johnson is in her seventh year at Cohen & Malad. With her concentration in business litigation, she’d never had to present to a jury until the firm started handling the Weinberger cases. She’s been second chair in some trials so far, and she’s on the docket as lead counsel for two trials scheduled next year.

“No matter how long somebody practices, to get up and really think on your feet, defending those hearsay objections, willing the jury or getting the jury to understand your case and be on your side, that’s experience that’s hard to come by these days,” Johnson said.

Rarer still is the unprecedented scope of the body of litigation. “This is a piece of Indiana history,” she said. “To be able to work on this was just an absolute for me.”

Rooth, an attorney for about 29 years, said the Weinberger cases have sharpened his courtroom ability.

Because the defendant has been uncooperative, malpractice attorneys approach every case with the expectation that they will argue it before a jury.

Rooth usually tries one or two jury trials a year. He said he can expect to try 20 Weinberger cases in 2013.

“I’m afforded the opportunity to practice the art of litigation,” Rooth said. “The word I have for this is gratitude; gratitude to practice my art.” He’s been able to achieve a level of proficiency in preparing and trying cases that he would not have appearing on a more sporadic basis.

It takes a team

At Cohen & Malad, Allen, Cutshaw and Johnson work full time on Weinberger cases, and at least one other attorney works part time on them, Allen said. A full-time nurse assists with preparation and research, as do two paralegals.

At Theodoros & Rooth, Rooth is assisted by partner Perry Theodoros, attorney Holly Wojcik, three paralegals and two assistants who primarily are responsible for handling Weinberger cases.

About 200 cases are in various stages of the medical review board process. About 70 are in court with trial dates set or awaiting trial setting, Cutshaw said.

Allen said communication between the firms and assignments of specific duties and comprehensive case management have been a key part of dealing with the caseload.

“It’s amazing the amount of correspondence, pleadings, conferences with clients, depositions, and submissions that are written and submitted to the medical review panel,” Johnson said. “We have deadlines literally every day.”

And while each case against Weinberger has “similar scenes and frames,” as Rooth put it, each also has its own set of facts, and attorneys must prepare accordingly.

But the cases also have elements of repetition: deposing Weinberger, who takes the Fifth; and deposing typically the same small circle of expert defense witnesses.

“We have been mindful of rotating attorneys through those depositions so the same person isn’t always taking depositions or going to trial just to avoid some of those burnout issues,” Allen said.

Looking ahead

Attorneys said they hope global resolution of the Weinberger cases is possible, and some developments suggest such an outcome might be achievable.

U.S. Magistrate Judge Andrew Rodovich in the Lafayette Division of the U.S. District Court for the Northern District of Indiana in April recommended a special master be appointed to deal with the pending cases, and a ruling is anticipated.

The special master was requested on behalf of Indiana Department of Insurance Commissioner Stephen Robertson. A special master would have powers from the court to expedite resolution of the outstanding Weinberger cases through mediation. The patient compensation fund says that without a special master, disposing of the cases could take five to 13 years if all went to trial.

“The commissioner would really like to see all these cases resolved as quickly as possible,” said Tina Korty, general counsel for the Indiana Department of Insurance, which administers the fund.

It’s a sentiment the attorneys share.

“I think everybody should seriously take off the boxing gloves and resolve this and settle these cases,” Cutshaw said. “There’s a lot of money being paid to defend these cases.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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