Years of civil wrangling could await Weinberger case

2012-10-20T20:00:00Z 2012-10-22T00:39:03Z Years of civil wrangling could await Weinberger caseMarc Chase, (219) 662-5330
October 20, 2012 8:00 pm  • 

VALPARAISO | A seven-year prison sentence for convicted former Merrillville "Nose Doc" Mark Weinberger brought closure in his criminal case this month, but potentially hundreds of former patients seek another kind of justice.

The Valparaiso attorney for one of Weinberger's patients -- who later died of cancer following an alleged misdiagnosis -- accuses the state of blocking a multimillion-dollar judgment for his client. That case remains tied up in appeals court.

And a Merrillville attorney has said he represents another 288 patients who received either insufficient or non-existent care from the former sinus doctor. Each client represents a potential civil lawsuit, and seven of those cases already have been litigated, with judgments against Weinberger, said the attorney, Barry Rooth.

It all promises a long road filled with legal wrangling that could go on for years.

For Valparaiso's Shawn Barnes, the quest for "justice" continues as she seeks payment of a nearly $13 million verdict against Weinberger in the 2004 death of her mother, Phyllis Barnes.

What should have been the hard part is already over, according to Shawn Barnes' attorney Kenneth Allen, who successfully litigated a wrongful death case against Weinberger last year in Lake County civil court and won the $13 million judgment.

But now legal wranglings stand in the way of the actual payment.

Allen accuses the Indiana attorney general of holding up payment to Shawn Barnes until millions of dollars in punitive damages of the judgment are paid to a state victims' compensation fund, Allen said. The attorney general's office denies Allen's contention the state is behind the delay.

For the remainder of the judgment, Allen said Weinberger's insurance company has agreed to directly pay Shawn Barnes $1.25 million under Indiana's malpractice caps. But that payout also is being blocked because of the state's claim in the case, Allen said.

"That the attorney general has chosen to put the interests of a general crime victim's fund above those of the real victim here is not only ironic but tragic," Allen said.

Indiana attorney general spokesman Bryan Corbin said Allen's characterization that the state is "blocking" payment to his client is false.

"It is false for the personal injury lawyer to say that his client cannot get money because of something the state is doing," Corbin said. "(Weinberger's) insurance company could pay the approximately $3 million in compensatory damages today to Ms. Barnes without further delay."

Corbin did say, however, that the state also has an obligation -- under state law -- to pursue 75 percent of the punitive damages, or about $7.5 million, for the state's Victim Compensation Fund. This would ensure other victims of Weinberger, whose cases may still be pending, receive aid as well, Corbin said.

"The state of Indiana wants to see the many patient-victims of Dr. Weinberger paid the private recompense they are entitled to," Corbin said. "If a doctor's malpractice insurance is fully paid out, up to the policy limits, to the first victim to win a judgment -- and the money is fully exhausted -- then there may be nothing left for other victims whose cases haven't gone to trial yet."

But for Shawn Barnes, whose mother was diagnosed with laryngeal cancer in 2001 after an alleged misdiagnosis by Weinberger, the wait continues.

Shawn Barnes was 13 at that time, and for the next three years became her mother's sole caregiver. Between 2004, the year of her mother's death, and 2011, justice for Barnes was stymied by Weinberger fleeing to Europe to avoid a torrent of civil litigation by patients, Allen said.

"My mom and I always held out hope. We believed there would be some justice in the end," Shawn Barnes said in a statement through her attorney. "After we finally found Weinberger and brought him to trial, it felt like justice. But then Weinberger avoided paying the verdict...It's like climbing the tallest mountain in the world...but when you get to the top, there's another taller mountain you still have to climb."

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