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.