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 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.
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.
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.”•