Lawyers in uncharted waters with 358 med-mal claims against former physician

If ever there was a line of litigation symbolizing a “cornucopia of legal issues,” then it’s the string of claims against the former Merrillville sinus specialist known as “The Nose Doc.”

Hundreds of state and federal actions are under way against a single doctor on an array of issues, putting Indiana in the history books and creating an intersection of legal nuance ranging from medical malpractice, law firm litigation coordination, emotional distress law, joint civil-criminal case overlap, and insurance coverage duty when an insured runs away from looming litigation.

All involve Dr. Mark S. Weinberger, a former ear-nose-throat specialist accused of fraudulent or improper medical care on hundreds of patients over the course of almost two years.
 

Cutshaw

“This has been a legal rollercoaster ride for us,” said Indianapolis attorney David Cutshaw at Cohen & Malad, one of the handful of lawyers representing hundreds of former patients suing the doctor. “We’ve had to step through so many legal minefields.”

Cutshaw and Leslie Gibson from Cohen & Malad have teamed up with Merrillville attorney Barry Rooth with Theodoros & Rooth to handle 289 separate claims against Weinberger, of which about 30 have gone through the state’s medical malpractice review panel process. Valparaiso attorney Kenneth Allen is also representing dozens of clients in a similar manner, including the only wrongful death action against Weinberger.

Gibson

Attorneys have a gag order on the specific lawsuits that are pending, so Merrillville defense attorney James Houghs declined to comment for this story and the plaintiffs’ lawyers involved kept their comments focused on the finished litigation and what’s already in the public record.

“This is all uncharted waters we’re in,” Rooth said. “We have never had a doctor in Indiana who’s been sued so many times, and I’m not sure that in my 26 years of practice I’ve heard of any other doctor anywhere sued more. I believe the public records clearly show that he knew litigation was coming and so his whole house of cards collapsed. Tort law can claim a victory for putting this guy out of business.”

Doctor to defendant

All together, the claims and cases represent a sordid affair of apparent medical malpractice stretching from November 2002 to September 2004. Weinberger had successfully run 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 and 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 about 6,000 feet above sea level in the Italian Alps. He stabbed himself in the neck with a knife before finally being extradited from Italy to the United States on federal criminal health-care fraud charges in December 2009.

Rooth

While he faces hundreds of medical malpractice claims, Weinberger is also looking at $5.7 million in creditor claims and 22 federal criminal counts of billing fraud. On Oct. 18, he signed a plea agreement that admitted guilt in all of the federal counts and would impose a 4-year prison sentence and fines. The Northern District of Indiana’s Hammond division approved that agreement and a sentencing hearing is scheduled for January before U.S. Judge Philip Simon. Without the plea, Weinberger would have faced more than 200 years in prison and millions in fines.

The plea would limit the maximum potential sentence to 286 years of both incarceration and supervised release and $5.5 million in fines, but he could face even more than that if the judge doesn’t accept the agreement for the 48 month-penalty.

Allen isn’t impressed by that criminal case result, but says he’s relying on the civil system now.

“That’s a travesty and he should do more than 4 years, and it’s really disappointing in a sense that you can call that full justice,” Allen said. “The civil courts are where he’ll be held accountable.”

Massive malpractice matters

More than 350 malpractice claims have been lodged against Weinberger, and attorneys say most lay out similar accusations: that he allegedly performed unnecessary surgery on people and those procedures either weren’t done or were performed poorly. The suits and evidence in the cases include some allegations that Weinberger would show patients CT scans from other patients and that the procedures would take only 24 minutes rather than normal two or three hours.

Generally speaking, Allen describes the doctor of practicing what constitutes “diagnoses for dollars.”

About three dozen of the claims have gotten through the Indiana Medical Malpractice review process, according to the attorneys representing the accusing patients. Gibson said that most of the three-doctor panels made up of fellow ENTs have found Weinberger didn’t meet the standard of care, though some have found fraud that doesn’t constitute a breach in that standard.

That’s a key step in the medical malpractice review process, which is governed by a 1975 act that makes Indiana’s system the oldest in the country. Damages in these cases are capped at $1.25 million, with the doctor being responsible for the first $250,000 and the remaining $1 million coming from the Indiana Patient Compensation Fund for each single injury.

While all of the claims likely won’t go to trial, the fund could face a potential liability of $90 million from the 357 cases. The fund is financed by surcharges on the medical malpractice premiums of health-care providers in the state, and officials say enough is on hand with reserves to cover even the largest hit from the Weinberger claims.

‘Cornucopia of legal issues’

For the attorneys involved in the state medical malpractice litigation, though, their work has opened up a host of novel issues. Some of those came to light with the first case that went to trial against Weinberger, resulting in a $300,000 verdict for the plaintiff following a weeklong trial. The Rooth-Cutshaw-Gibson legal team saw an Aug. 27 verdict for William Boyer of Gary, a heavy equipment operator. Pre-operative tests reveled Boyer had an irregular heartbeat. Weinberger didn’t tell Boyer about the problem, and went ahead and treated Boyer for what he falsely said was bloody sinuses. Boyer found out about the heart irregularity a year later when his heart was failing. Of that total award, $50,000 comes from the state-administered patient’s compensation fund while the rest would come from the doctor’s medical malpractice insurer.

Who pays for the verdicts on all of these cases is still up in the air, based on a related federal civil suit still pending in the Northern District. Weinberger’s medical malpractice insurance carrier, Medical Assurance Company, is challenging whether it must defend Weinberger on these actions because he fled the country. By disappearing, the insurer claims Weinberger breached an insurance contract cooperation clause and didn’t participate in his defense as required, leading to the insurer not having a duty to defend or indemnify him. But the 7th Circuit Court of Appeals in June lifted a stay from the District judge and held that Medical Assurance hadn’t shown the breach resulted in actual prejudice, possibly interfering with the state medical malpractice claims. The case is ongoing.

Regardless of whether Weinberger or his insurer pays, the attorneys say that’s just one of the many legal issues being presented.

In the Boyer case, the defense filed numerous motions in limine to try and insulate the jury from hearing about what attorneys describe as Weinberger’s “shenanigans.” He’d admitted negligence, but not proximate cause in order to try and keep out of evidence what he’d actually done, Cutshaw said. They were able to get that evidence admitted.

On the emotional distress aspect, Cutshaw said they spent a lot of time briefing on the state of emotional distress law in Indiana. There was a question about whether the doctor’s fleeing to Europe could be a basis for emotional distress because he left months after the surgery, and Cutshaw said the judge agreed that Indiana caselaw is clear that it can be used.

Another issue that came up was Weinberger’s ongoing criminal case in federal court, which Cutshaw said the doctor used to stay quiet during the state civil case. He took the Fifth on “every question except his name,” and that led to the lawyers delving in to how Indiana allows a joint civil-criminal defendant to do so and how the jury had an adverse inference to that.

“Each complex case has its own complex legal issues, but I haven’t been involved in one where you have to insert yourself into insurance coverage issues, litigation and evidentiary matters, civil, and criminal issues like this,” Cutshaw said. “As we try more and more of these, we’ll get a formula down and the verdicts have the potential to increase.”

The next trial on their end is set for Dec. 6 in Crown Point.

Allen’s first trial is set for early next year, and he hopes the federal criminal case will be complete to help move the state claims into court more quickly. He represents the family of Phyllis Barnes, who died just days before Weinberger disappeared in September 2004. The woman’s sister filed the suit that alleges the specialist diagnosed Barnes with nasal problems rather than spotting the throat cancer that was actually to blame, and that he performed a procedure then didn’t check up and laughed off concerns about it later.

But while the particulars of the cases might vary slightly, the attorneys note that because of the similarities in these cases, they’re learning more each time a case goes to trial.

“Every case we try, we learn more and more how the jury feels about Weinberger and what the allegations are,” he said. “We as litigators are getting more education on the litigation. There’s a learning curve in our favor, I think.”•