Medical malpractice

Doctor’s statute of limitations defense in med mal claim rejected by justices

May 29, 2014
Jennifer Nelson
A doctor who chose to perform just one biopsy instead of two on a woman who later was diagnosed with cervical cancer is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations, the Indiana Supreme Court ruled Wednesday.
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Lawsuits say Munster cardiologist inserted unneeded defibrillators

May 9, 2014
Dave Stafford
A Lake County cardiologist sued for performing surgeries to insert heart defibrillators that two patients say they didn’t need may have performed other such unnecessary procedures, attorneys say.
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Medmal claim sent via FedEx before deadline was timely filed

March 11, 2014
Dave Stafford
A medical malpractice complaint was timely filed when an attorney delivered it to Federal Express a day before the statutory deadline, the Indiana Supreme Court ruled, reversing lower court orders and remanding the complaint to the trial court.
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Judges dismiss interlocutory appeal in Weinberger suit as untimely

February 18, 2014
Jennifer Nelson
The Indiana Court of Appeals has dismissed a patient’s interlocutory appeal in his medical malpractice lawsuit against former doctor Mark Weinberger and related entities, finding it has no jurisdiction to entertain the appeal.
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Judges rule couple did not release medical providers from liability

December 23, 2013
Jennifer Nelson
A trial court appropriately denied the partial summary judgment motion filed by medical providers in a malpractice claim, the Indiana Court of Appeals held, because the plaintiffs did not release the medical group from liability by filing a proof of claim with the doctor’s insurer, which was insolvent and being liquidated.
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State not allowed to intervene in Weinberger case

December 18, 2013
Jennifer Nelson
Finding the law does not allow the state to become a party to otherwise private litigation at any stage of the proceedings, the Indiana Court of Appeals reversed its prior order granting the state’s motion to intervene in a settlement reached between former doctor Mark Weinberger and the estate of a patient.
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Judges divided over complicated issue of wrongful-death attorney fees

November 27, 2013
Jennifer Nelson
A complex and complicated case regarding whether attorney fees awarded from the Indiana Patient’s Compensation Fund are capped at 15 percent led to a split in the Indiana Court of Appeals. The majority decided that the cap does not apply to the calculation of excess damages of any type from the fund.
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Court finds facilities have immunity in suit over detention

November 20, 2013
Jennifer Nelson
The three unidentified entities involved in the detention of a Bloomington man for several days after he refused in-patient treatment for alcoholism are entitled to immunity in his lawsuit alleging medical malpractice, the Indiana Court of Appeals ruled Wednesday.
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Malpractice defense accused of ‘egregious mischaracterization’ of record

August 15, 2013
Dave Stafford
Defense attorneys who asked for a rehearing from the Indiana Court of Appeals panel that earlier affirmed a trial court medical malpractice jury verdict failed to sway judges who took the opportunity to call out their “egregious mischaracterization” of the record.
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Justices revive malpractice suit alleging doctor’s failure to warn patient not to drive

August 8, 2013
Dave Stafford
A medical malpractice suit arising from a debilitating head-on automobile crash should not have been disposed of through summary judgment in favor of the doctor, the Indiana Supreme Court ruled Thursday. Justices reversed the order and sent the case back to the trial court.
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Delayed submission of filing fee compared to dilemma created by a $7 horse-shoe nail

July 31, 2013
Marilyn Odendahl
In overturning the trial court’s ruling, the Indiana Supreme Court compared the case to Poor Richard’s admonition: “For want of a Nail the Shoe was lost; for want of a Shoe, the Horse was lost; and for want of a Horse the Rider was lost, being overtaken and slain by the enemy, all for want of Care about a Horse-shoe Nail.”
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Settlement reached in Weinberger medical malpractice suits

July 3, 2013
Dave Stafford
Victims split $55 million, but some cases continue for former fugitive Merrillville ‘Nose Doctor.’
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Weinberger cases settle for $55M

June 24, 2013
Dave Stafford
Hundreds of patients of a former Merrillville ear, nose and throat doctor serving a seven-year federal sentence for health-care fraud will be compensated for their medical malpractice claims through a $55 million settlement.
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Justices: Excluding expert witness was error by trial court

June 24, 2013
Jennifer Nelson
Four Indiana justices Friday held that a Montgomery Superior judge erred when he struck the plaintiff’s expert witness in a medical malpractice lawsuit and dismissed the suit under Indiana Trial Rules 37(B) and 41(E).
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Appeals court reinstates proposed med mal complaint

June 12, 2013
Jennifer Nelson
Finding that a Hendricks County court didn’t have jurisdiction to dismiss a man’s proposed complaint for damages under Trial Rule 41(E) or based on noncompliance under the Medical Malpractice Act, the Indiana Court of Appeals Wednesday reinstated the proposed complaint.
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Lawsuit claims Indiana’s high-risk insurance pool hoards cash

June 5, 2013
Dave Stafford
Health care providers who’ve been rejected by private malpractice writers turn to a state-run insurer that typically charges two to three times more for coverage. A class-action lawsuit claims the high-risk pool owes its policyholders a $31 million surplus.
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Woman who used FedEx to send med mal complaint didn’t timely file

May 9, 2013
Jennifer Nelson
Third-party carriers are not included in the statute regarding filing proposed medical malpractice complaints with the Indiana Department of Insurance, so a woman’s complaint that was sent via FedEx within the two-year statute of limitations – but not stamped until after the limitations expired – is not considered timely filed, the Indiana Court of Appeals ruled.
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Prospective juror’s criticism of lawyer OK in verdict for hospital

March 25, 2013
Dave Stafford
When a prospective juror in a wrongful death lawsuit against a hospital said he believed a lawyer was suing to make money, that attorney’s failure to ask the judge for an admonishment of the jury pool waived her later argument for a mistrial, the Court of Appeals ruled Monday.
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Weinberger owes patient $150k for unnecessary surgery

January 31, 2013
Jennifer Nelson
Dr. Mark S. Weinberger, who fled the country for several years after performing numerous unnecessary surgeries on his patients’ sinuses, must pay one patient $150,000 on a medical malpractice claim.
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Plank failed to preserve claim med mal cap is unconstitutional

January 15, 2013
Jennifer Nelson
The Indiana Supreme Court unanimously ruled Tuesday that Timothy Plank, who filed a medical malpractice complaint following the death of his wife in 2001, forfeited his opportunity to conduct an evidentiary hearing challenging the constitutionality of the Medical Malpractice Act.
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PCF may not present evidence to dispute injury

November 1, 2012
Jennifer Nelson
The Indiana Supreme Court ruled Wednesday that in a case involving a boy diagnosed with a mild form of cerebral palsy, the Indiana Patient’s Compensation Fund may not present evidence to dispute the existence or cause of the boy’s injury while defending his petition for excess damages from the fund.
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COA affirms $550,000 med mal verdict; denies appellate attorney fees

October 30, 2012
Jennifer Nelson
A Lake Superior judge did not err when he allowed a witness to testify on behalf of the party bringing a medical malpractice complaint against a doctor nor in excluding the testimony of the doctor’s expert witness due to untimely disclosure, the Indiana Court of Appeals held Tuesday.
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Weinberger sentenced to 84 months in prison

October 12, 2012
Dave Stafford
A judge on Friday rejected former Merrillville "nose doctor" Mark Weinberger’s request to be released from federal prison for time served and instead ordered him to spend almost another four years behind bars for fraud.
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Judges reaffirm 2 Weinberger patients’ psychological evaluations

October 12, 2012
Jennifer Nelson
In reaffirming a Lake Superior Court decision that granted former doctor Mark Weinberger’s motion that two men suing him undergo psychological examinations, the Indiana Court of Appeals clarified that there is no requirement that a trial court must compel an involuntary psychiatric evaluation when faced with similar facts and circumstances as in the instant cases.
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Weinberger seeks sentence of time served

October 8, 2012
Dave Stafford
Former Merrillville ear, nose and throat doctor Mark Weinberger on Monday asked a federal court to sentence him to time served for the 22 counts of health care fraud to which he pleaded guilty.
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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. 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.

  4. 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.

  5. 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)

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