Attorney for 'Nose Doc' patients argues for stiffer sentence

2012-10-09T12:15:00Z 2014-07-25T13:24:12Z Attorney for 'Nose Doc' patients argues for stiffer sentenceBy Marc Chase, (219) 662-5330
October 09, 2012 12:15 pm  • 

MERRILLVILLE | The only way an indicted former Merrillville doctor could have accomplished express sinus surgeries on his patients would have been with the efficiency of a hand grenade, a local attorney contends.

Barry Rooth, the attorney for nearly 300 past patients of former Merrillville "Nose Doc" Mark Weinberger shot back Tuesday at the doctor's contention he should be sentenced only to time already served in a Chicago jail cell.

On Monday, Weinberger's attorney filed Hammond federal court documents asking a judge to sentence his client to time already served for 22 counts of health care fraud. Weinberger is scheduled to be sentenced Friday after pleading guilty to the charges in Hammond federal court.

On Tuesday, Merrillville attorney Rooth, who said he represents 288 people who received insufficient or nonexistent care from Weinberger, issued a letter to the court of his own, taking issue with Weinberger's arguments for a lenient sentence.

"We do not believe that time served would be a just sentence in a case like this," Rooth told The Times.

In his letter to the court and federal probation officers, Rooth specifically takes issue with the claim of Weinberger's attorney, Visvaldis Kupsis, that "no credible evidence exists to indicate that Dr. Weinberger performed fraud in any other case other than the 22 cases for which he was indicted and for which he has pled guilty."

To date, Rooth wrote in his letter, he has submitted 90 of the 288 cases to medical review panels and has litigated and received jury verdicts in seven cases that are not part of the criminal indictment against Weinberger.

Rooth contends this volume of cases illustrates a need for harsher penalties against Weinberger than the 34 months the defendant already has spent in jail awaiting resolution of his federal criminal case.

Rooth also notes in his letter the average time Weinberger spent on his sinus surgeries was between 15 and 20 minutes, far less than the standard hour or more the procedures should have taken.

"In fact, one of his (Weinberger's) expert witnesses, Dr. David Calderelli from Rush University in Chicago, testified under oath that the only way to accomplish these surgeries in the listed time would be with a hand grenade," Rooth wrote.

Rooth argues in his letter, "Our experts have consistently rendered opinions that Weinberger did not perform the sinus surgeries for which he billed his patients and their insurance companies."

Another region attorney, Valparaiso lawyer Kenneth Allen, also questioned the justice in a sentence that could soon set Weinberger free.

Allen represents the family of Phyllis Barnes, who died of cancer after Weinberger allegedly misdiagnosed her. In 2011, a Lake County civil jury awarded $13 million to the family in a wrongful death lawsuit filed against Weinberger.

"There is no amount of jail time that can undo the hardship he has done to the family of Phyllis Barnes," Allen said Tuesday. "But I suppose it really does pour salt in the wounds of those we represent (if Weinberger is sentenced to time already served in jail)."

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