Lawyers lay out their cases in ‘Nose Doc’ trial

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Updated: August 4, 2011 4:20PM

Opening statements began with dramatic flourish in the first day of the civil medical malpractice trial of former Merrillville otolaryngologist Mark Weinberger and Valparaiso physician assistant Joe Clinkenbeard.

The courtroom of Lake Superior Court Judge Diane Kavadias Schneider looked like a Radio Shack on Tuesday as a giant, flat-screen TV, iPad, laptops and posterboards transformed the courtroom into a multimedia presentation.

“This case is about Phyllis,” plaintiff attorney Kenneth Allen explained to the jury of four men and four women impaneled Monday. Allen represents Shawn Barnes of Valparaiso, who is suing Weinberger and Clinkenbeard for failing to diagnose the cancer that took her mother’s life in 2004 at age 50.

Phyllis Barnes’ daughter and sister, Peggy Hood, joined other family members in Kavadias Schneider’s packed Hammond courtroom to hear opening statements from Allen and the two defendants’ lawyers, James Hough and Georgianne Walker.

Allen laid out his case that Clinkenbeard and Weinberger, who treated Phyllis Barnes for sinus and bronchial problems in 2000 and 2001, should have suspected and diagnosed cancer in her.

Weinberger was not present in court and faces 350 other medical malpractice lawsuits and a criminal fraud sentencing hearing in April. This is the only Weinberger lawsuit in which Clinkenbeard is a co-defendant.

Shawn Barnes seeks $500,000 for medical bills, $1 million in projected lifetime earnings, $5 million in the loss of her mother against both defendants and unspecified millions more in punitive damages against Weinberger, who allegedly performed irreversibly damaging and unnecessary surgery on her mother, even though Allen and his experts alleged diagnostic tests showed her sinuses were clean.

Both Weinberger and Clinkenbeard have denied the allegations and contest the monetary damages.

Allen reviewed Barnes’ medical history to the jury. He described her repeated visits to Clinkenbeard and later Weinberger complaining about sinus troubles, coughing, sore throat and breathing difficulties. Clinkenbeard prescribed antibiotics, steroids, but never tested or discovered cancer. She sought out Weinberger in 2001 and was impressed by his credentials.

“But Mark Weinberger had a dark side,” Allen told the jury. “Unlike most doctors, Mark Weinberger cared little for his patients.”

Personal, professional details

Allen painted Weinberger as a greedy carpetbagger who practiced in Northwest Indiana but never lived here. Allen described a lavish lifestyle of chauffeur-driven limousines and a five-story Chicago Gold Coast townhouse surrounded by personal assistants.

“Mark Weinberger needed a cash machine to run his lifestyle,” Allen said, pointing out that “practically all of his patients received the same diagnosis and the same surgery. It was not a diagnosis for patient health. It was a diagnosis for dollars.”

Weinberger recommended and performed procedures that did not improve her condition, but worsened it. She saw an allergist before eventually seeking another ear, nose and throat specialist, Dennis Han of Merrillville, who diagnosed the lump in her throat as stage 4 cancer.

Weinberger attorney Hough described a different Weinberger, one who followed the appropriate standard of medical care when treating Phyllis Barnes. Hough told jurors that other health care providers, including a hospital emergency room, allergist and anesthesiologist found no cancer.

He called his client “an easy target. “They’re after him,” he said, telling the jury members they will hear things about Weinberger’s personal life. “But this case needs to be decided on the care of Phyllis Barnes. Listen to the evidence.”

Clinkenbeard defense attorney Walker attempted to separate her client in the jury’s mind from Weinberger. She described the standard of care with which he treated Barnes and said her client followed it. Walker said the fact that Barnes had cancer does not mean that her client was negligent.

Later, Han took the stand to say that Weinberger should have diagnosed Barnes’ cancer.

He said if it had been discovered earlier as stage 1 or stage 2 cancer, it would have been “highly curable” with radiation treatments and her chances of survival much greater.