Jury awards $13M in 'nose doctor' malpractice case

March 24, 2011 9:45:16 PM PDT
A jury Thursday night awarded a family $13 million in one of hundreds of actions against Indiana Dr. Mark Weinberger.

Weinberger spent five years on the run before his 2009 capture. Thursday night's verdict carried $3 million in compensatory damages and $10 million in punitive damages. "It doesn't justify what she went through but it at least puts her to rest in the most positive way knowing that in her passing, she's bringing this man to justice," said Shawn Barnes, the daughter of Phyllis Barnes, who died in 2004.

In a second verdict Thursday night, Joe Clinkenbeard, a physician assistant, was found not liable in the case.

Weinberger made international news when he was arrested in 2009 while camping out in the Italian Alps. He has since pleaded guilty in a separate criminal case to health care fraud.

In the civil case which saw a verdict reached Thursday, Weinberger was accused of failing to diagnose throat cancer in Barnes.

Barnes was deposed in 2003. That tape was played in court. |Watch Barnes' full deposition| Three years earlier, Weinberger performed sinus surgery on Barnes. Barnes' family and attorney say that sinus surgery was unneeded and also contributed to her death. The cancer, they contend, was clinically evident, and, they say, if Weinberger had properly done his job, Barnes might be alive today.

"Our family and a lot of other families have been very hurt by the way we were treated in the past," said Shawn Barnes.

Weinberger is in federal custody and appeared in court by way of a videotaped deposition in which he refused to answer any questions and repeatedly pleaded the fifth amendment.

His former wife also appeared in a video deposition saying that her husband was arrogant and cunning and that he simply vanished while on vacation in Greece just months before Barnes' death.

"Absolutely affected my life. I think it led to Mark leaving," said Michelle Kramer. | Watch Kramer's full deposition|

Weinberger's attorney concedes the doctor has personal problems, but says the case is about Phyllis Barnes. The doctor's surgery on her, the defense says, was legitimate and helpful. Most significantly, Weinberger's attorney argues Barnes' cancer was not detectable at that time.

The Barnes case is the first of several hundred malpractice actions against the imprisoned doctor that has gone to a point of trial. On the criminal front, Weinberger has agreed to a plea bargain on 22 counts of health care fraud that would keep him locked up for four more years. Some alleged victims that is inadequate.

"I don't think four years even begins to be any sort of justice," said Peggy Hood, Barnes' sister, who said Thursday night that it was important to her that Weinberger at least never practice medicine again.

"Some measure of justice has been done, and we can finally collect on the harm this man has caused," said attorney Kenneth Allen.

Weinberger still faces more than 350 other state medical malpractice suits, as well as a federal lawsuit filed by his medical malpractice insurance company.

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