Payment of any punitive damages far from assured

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Updated: August 4, 2011 4:20PM

It’s possible that plaintiffs in the medical malpractice lawsuit against “The Nose Doctor” Mark Weinberger could win their case against the physician but never recover any punitive damages.

Valparaiso attorney Kenneth Allen, who represents the late Phyllis Barnes in her estate’s negligence lawsuits against the former Merrillville ear, nose and throat specialist and his co-defendant, Valparaiso physician assistant Joe Clinkenbeard, acknowledged that Weinberger may have no assets.

“Our position is that Mark Weinberger may or may not have squandered all of his vast wealth,” Allen said. “But Mark Weinberger is a very cunning and clever individual. I want to be certain that when he gets out of custody, if he is writing a book or a screenplay, that he pays his victims first and not just himself.”

Allen said if Weinberger moves to another state or country to practice medicine he wants “a portion of every paycheck to go to his victims. I don’t want him to personally benefit from the harm and havoc he has wreaked in the lives of others.”

Allen, asking for a $50 million verdict, said justice requires insurers to pay the claims for damages Weinberger did to his patients.

“He needs to be punished severely and only you can do it,” he told jurors. “It needs to be strong and it needs to be loud. It needs to be said and you need to say it.”

Barnes, a mother of one, died at age 50 in 2004 of laryngeal cancer that spread throughout her body. Her daughter, Shawn Barnes of Valparaiso, 25, alleges in her lawsuit that Weinberger and Clinkenbeard each failed to diagnose that cancer, which caused Phyllis Barnes’ premature death. She also alleges that Weinberger performed unnecessary surgery that caused her mother pain and suffering over the last two years of her life, a theory called a survival action.

Barnes’ lawsuit sought $500,000 in medical bills, more than $800,000 in projected lifetime lost earnings and $5 million more for her mother’s pain and the loss of her mother. But Allen seeks $50 million in punitive damages from Weinberger, though he knows he may never collect.

Indiana’s malpractice law establishes caps on provider liability. If a jury awards damages, the defendant’s private insurer first must pay its portion of any settlement or jury verdict before the Indiana Patient Compensation Fund will make any medical malpractice payment.

Allen sought to convince the eight-person jury of negligence and obtain the maximum amount allowable. His client could receive up to $3.75 million — $1.25 million for each act of alleged malpractice.

Indiana Department of Insurance spokesman Logan Harrison confirmed that the maximum amount the patient compensation fund could pay out would be $1.25 million per alleged incident of malpractice. “The Patient Compensation Fund has not awarded any monies in the past for punitive damages,” he said.

Weinberger’s insurance company, ProAssurance Co., is suing him to avoid paying his claims.

In its 2006 federal lawsuit, the insurer said its policy does not allow the payment of claims for “willful, wanton, fraudulent, dishonest, criminal or malicious acts or omission.” ProAssurance also claims Weinberger violated his medical malpractice insurance policy covenants by failing to cooperate in his defense.

Weinberger fled the country in 2004 and was an international fugitive until his 2009 capture in Italy. He has pleaded guilty to 22 counts of federal health-care fraud and faces an April 27 sentencing hearing. If ProAssurance wins, it could mean that the Indiana Patient Compensation Fund may have to assume liability for all of the malpractice insurer’s claims. The Fund might contest that liability and object to paying.

“That’s the argument the (patient compensation) fund will make,” Allen said.

By statute, the Patient Compensation Fund, which is operated by the Indiana Department of Insurance, is obliged to pay malpractice settlements and judgments for qualified providers who have paid their malpractice premiums and surcharges, despite the failure of medical malpractice insurers to do so.