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Rehearings - 8/17/12

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Indiana Lawyer Rehearing

Former fugitive doctor enters guilty plea - IL Rehearing "Disgraced 'Nose Doctor' keeping lawyers busy" June 22-July 5, 2012

A former Merrillville ear, nose and throat doctor who eluded authorities for more than five years before his capture on a snowy Italian mountainside pleaded guilty to felony charges of insurance fraud July 23.

Mark Weinberger, 49, built a multi-million-dollar practice billing himself as “The Nose Doctor.” He abandoned the practice in 2004, disappearing while vacationing in Greece. He was captured in 2009 and extradited to the United States, where he had debts totaling millions of dollars and faces hundreds of malpractice claims.

Weinberger pleaded guilty before Chief Judge Philip Simon in the Hammond Division of the U.S. District Court for the Northern District of Indiana. Sentencing is set for Oct. 12, and he faces up to 10 years in prison if Simon accepts the plea.

Simon told the Post-Tribune of Merrillville, “I’m virtually certain I’m going to accept the plea agreement.”

It’s the second time Weinberger has pleaded to the charges. Last year, Simon rejected a plea deal in which Weinberger would have served a four-year prison sentence. Weinberger is charged with 22 counts of insurance fraud alleging that he billed his malpractice carrier for surgeries that he didn’t perform totaling about $350,000.

Weinberger also faces more than 350 malpractice suits from former patients who claimed that Weinberger performed unnecessary or outmoded surgeries that might have worsened their conditions.

Separately, Weinberger’s malpractice carrier has sued him, claiming he was uncooperative and his actions void its duty to defend. Weinberger, in turn, sued the carrier, claiming bad faith. Still to be untangled in the federal courts 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.

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

– Dave Stafford

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AG: Parts of immigration law can’t stand - IL Rehearing "Indiana's immigraiton law reeling" July 6-19, 2012

Indiana Attorney General Greg Zoeller said July 31 that a recent U.S. Supreme Court decision that struck down most of a tough Arizona law will impact a similar immigration law signed by Gov. Mitch Daniels in 2011.

“Certain portions of the state law cannot stand,” Zoeller said in a statement announcing that provisions of SEA 590 allowing warrantless arrests cannot be defended.

Zoeller filed a brief to that effect in an ACLU case, Buquer v. Indianapolis, 1:11-CV-0708, in U.S. District Court for the Southern District of Indiana.

“… the Attorney General recognizes the constitutional infirmities inherent in a warrantless arrest for a removal order, a notice of action, or the commission of an aggravated felony that would subject the arrestee to removal,” Zoeller wrote in the brief. “The Attorney General will submit the issue to the Court with the recommendation that a warrantless arrest under those circumstances is unconstitutional.”

The ACLU suit also challenged SEA 590’s criminalization of the use of consular-issued identification cards. Zoeller said an inference from Arizona, et al. v. United States, 11-182, that this portion of the law should be struck down was an improper reading of the SCOTUS decision.

“While the use of consular identification cards was not addressed in Arizona, (the state recognizes) the substantial questions about how far the Indiana legislature may go to criminalize purely private behavior … and how far the pre-emption doctrine can go toward defining what identification a State may recognize as valid for public and governmental purposes,” Zoeller wrote in the filing, leaving the question open for the court.

Zoeller also is defending the law in another case, Union Benefica Mexicana v. State, 2:11-CV-00482, in the U.S. District Court for the Northern District of Indiana, which challenges two sections of the law: one that allows the Department of Workforce Development to file civil actions against employers for reimbursement of unemployment insurance if they knowingly employed illegal immigrants; and a second that prohibits someone from performing day labor without filing an attestation of employment authorization.

Zoeller said he will continue to defend that case in light of the Arizona ruling, but no brief has been filed in that matter because the case has been stayed.•

– Dave Stafford

Rehearings: Updates on issues previously reported in Indiana Lawyer. For copies of the original story, call our circulation department at 317-636-0200 with the title of the article and the issue date listed. Fee is $5 per story.
 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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