Weinberger ordered to pay $13 million in wrongful death suit

2011-03-24T21:33:00Z 2011-03-26T01:09:23Z Weinberger ordered to pay $13 million in wrongful death suitBy Susan Brown susan.brown@nwi.com, (219) 662-5325 nwitimes.com

HAMMOND | A Lake Superior Court jury on Thursday awarded $13 million to the family of a Valparaiso woman who died of cancer following sinus surgery by Mark Weinberger, the Merrillville ear, nose and throat specialist who faces allegations by hundreds of former patients.

The verdict came on the sixth day of trial in a lawsuit filed by the family of Phyllis Barnes, 50, of Valparaiso.

Barnes died of laryngeal cancer three years after undergoing sinus surgery by Weinberger.

Barnes' attorney, Kenneth Allen, had argued the surgery was unnecessary, prompted by greed and contributed to Barnes' death.

Allen had asked jurors to award no less than $5 million in compensatory damages to Barnes' daughter, Shawn Barnes, now 25. He also asked for $50 million in punitive damages.

Allen also had sought $5 million in compensatory damages from co-defendant Joe Clinkenbeard, a physician assistant who treated Barnes prior to the surgery by Weinberger.

Jurors opted to award $3 million in compensatory damages and $10 million in punitive damages only against Weinberger.

The decision came at the end of a trial in which closing arguments by attorneys consumed about five hours before the case was handed to the jury, all eight of whom were allowed to deliberate. Typically two of the six are designated alternate jurors.

Jurors returned with the verdict within about four hours after final arguments by Allen, attorney James Hough representing Weinberger and attorney Georgianne Walker representing Clinkenbeard.

Allen told jurors Weinberger and Clinkenbeard failed to take steps to discover the tumor that killed Barnes despite numerous "red flags" indicating Barnes was suffering from a more serious condition than sinus problems.

"All of these red flags out of their own mouths," Allen said of testimony by paid witnesses called by the defense.

Those red flags included ear pain, one of the first symptoms of laryngeal cancer, and the spitting up of blood, he said.

Allen cited testimony by the defense's own witness conceding no evidence of sinus problems appeared on a scan taken prior to the surgery by Weinberger.

Allen argued Weinberger lied to Barnes, failed to fully inform her, worsened her cancer condition and ultimately deprived her of life.

"You need to send a message to him and anyone who might follow in his footsteps," Allen urged jurors. "It needs to be strong. It needs to be loud."

Hough and Walker had argued Barnes did not exhibit serious symptoms of the cancer killing her until after she ceased visits with Clinkenbeard and underwent the surgery by Weinberger.

Hough told jurors that Barnes suffering no further sinus problems after the surgery was evidence of its necessity.

And her cancer condition did not become clear until two months after the surgery when the tumor, which had gone undetected by other doctors, "burst out" to obstruct her airway, he said.

Walker argued expert witnesses confirmed Clinkenbeard's treatment met the acceptable standards of care in contrast to the medical review panel.

There was no evidence of any breach of conduct by her client nor that his treatment directly caused Barnes' death, she argued.

Because of Weinberger's dubious financial picture with insurers and personally, it is unclear whether the jury's award is collectible.

If collectible, Barnes' daughter may stand to gain three-quarters of the compensatory damages and 25 percent of the punitive damages.

Three-quarters of the punitive damages will be distributed to the state's Crime Victims Compensation Fund, Allen said.

Indiana law caps insurers' liability at $250,000. Amounts higher are paid by the Indiana Patient's Compensation Fund up to a maximum of $1.25 million, according to the Indiana Department of Insurance.

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