Almost everything about the rise and fall of otolaryngologist Mark Weinberger, MD — his assembly-line sinus surgeries, his $4 million yacht, his 5 years as a fugitive, his arrest in the Italian Alps on healthcare fraud charges — was spectacular.
“Spectacular” also applies to 2 settlements reached in the last week of June in malpractice cases filed by roughly 340 patients against Dr. Weinberger, now serving a 7-year prison sentence. The plaintiffs accused the 50-year-old physician, who billed himself as “The Nose Doctor,” of performing unnecessary and negligent sinus procedures that sometimes made their condition worse, not better.
A special malpractice insurance program administered by the state of Indiana, where Dr. Weinberger practiced, will pay $55 million to 282 patients in one settlement and $8 million to 60 patients in the other. In addition, Dr. Weinberger’s malpractice insurer will contribute another $3 million in the smaller settlement, said Kenneth J. Allen, an attorney in Valparaiso, Indiana, who handled those cases. The insurer and the lawyers involved in the larger settlement are still haggling in court over dollars.
The malpractice insurance program shelling out $63 million is called the Indiana Patient’s Compensation Fund. It relies not on tax revenue but on surcharges paid by physicians and other healthcare providers. Under state law, clinicians and their medical malpractice carriers are liable for only the first $250,000 in court damages or a settlement. The compensation fund covers any excess liability up to $1 million. Indiana was 1 of only 7 states in 2012 with such a fund, according to the publication Medical Liability Monitor.
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Dr. Mark Weinberger
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The $55 million in the larger settlements is the most ever paid out involving a single healthcare professional in Indiana, said Laura Wegmann, a spokesperson for the Indiana Department of Insurance. And never before, Wegmann toldMedscape Medical News, has the compensation fund combined 2 or more malpractice cases.
The 2 settlements do not represent an admission of liability by Dr. Weinberger. The vast majority of the cases had not reached the stage of a jury trial. However, in a handful of lawsuits, a jury already had found the physician liable for malpractice.
Medscape Medical News fleshed out the descent of Dr. Weinberger’s professional and personal life from court and law enforcement records and interviews with plaintiffs’ attorneys. “It’s stranger than fiction,” said Allen.
HROWING MONEY AWAY
The Metropolitan Correctional Center (MCC), where Dr. Weinberger is doing time for healthcare fraud, is a sleek, triangular high-rise federal prison with 5-inch-wide windows in downtown Chicago, Illinois. It is roughly 2 miles south of Dr. Weinberger’s former $2.2 million, 5-story townhome on the edge of the city’s ritzy Gold Coast neighborhood.
Dr. Weinberger enjoyed a golden lifestyle, spending 10 days each month vacationing on his 80-foot yacht in the Mediterranean or the Bahamas, his third ex-wife and psychologist Michelle Kramer, PhD, said in a court deposition. “Down time was very important to him,” said Dr. Kramer, who described her former husband as charming, romantic, cunning, and so arrogant at times that “when people gave him money back at the store, he would throw the change on the ground like he didn’t need it.”
On the home front, a chauffeur drove Dr. Weinberger each day to his medical practice in nearby Merrillville, Indiana, as well as delivered sushi lunches from a favorite restaurant in Chicago.
The otolaryngologist had a booming solo practice that appeared able to bankroll the good times. Court records indicate that in the 3 years before his disappearance in December 2004, Dr. Weinberger was grossing on average some $10 million a year. That amount was more than 15 times the median collections for otolaryngologists in group practices in 2004, according to the Medical Group Management Association. Of course, much of his gross revenue went toward the salaries of some 40 practice employees.
He had an ample patient base. Merrillville is surrounded by steel mills and beset with dirty air, according to ex-wife Dr. Kramer. “There’s a lot of sinus disease out there. And Mark would say everyone is insured.”
INSIDE A SURGICAL “FACTORY”
When Dr. Weinberger worked instead of vacationed, he worked briskly, by most accounts. Kenneth J. Allen, the attorney who represented 60 plaintiffs in the smaller malpractice settlement, said the physician averaged 100 procedures a month. According to Barry Rooth, an attorney in Merrillville who co-represented the 282 plaintiffs in the other settlement, Dr. Weinberger spent 20 to 25 minutes on procedures that “in the hands of skilled surgeons would take 2 hours.” The federal judge who sentenced Dr. Weinberger to 7 years in prison for healthcare fraud called the physician’s practice “something of a factory.”
How did this surgical factory operate? The malpractice lawsuits filed by Rooth and Allen allege a well-worn pattern: Patients would come to Dr. Weinberger complaining of allergies, congestion, headaches, and snoring. Dr. Weinberger would perform a computed tomography (CT) scan, read it himself, and then diagnose a deviated septum, polyps, and other abnormalities that supposedly blocked mucus drainage and obstructed nasal breathing. However, these conditions generally proved to be nonexistent, according to the lawsuits. Dr. Weinberger then recommended surgery, skipping any attempts to manage the symptoms with medication and other nonsurgical means.
To promote drainage, Dr. Weinberger could have debrided and widened natural ducts in the maxillary sinuses. Instead, say Rooth and Allen, Dr. Weinberger chose an outdated, more problematic, but speedier technique: drilling 2 new holes elsewhere in the maxillary sinuses. One risk of creating these new openings — and an outcome for some Dr. Weinberger’s patients — is mucus recirculation in the maxillary sinuses, which can lead to mucus build-up and chronic sinusitis.
Robert Tepperman in Munster, Indiana, sued Dr. Weinberger for malpractice after the physician drilled holes in his maxillary sinuses and recirculation set in, making his sinus problems worse. “They’re never going to get better,” Tepperman told Medscape Medical News.
He said that another physician who looked at his CT scan after the surgery said that his condition could have been managed with medication and nasal irrigation.
“Why didn’t Weinberger mention that?” said Tepperman, one of the plaintiffs in the mass settlement that Rooth helped reach. “I’m astounded that this could take place in the medical community. There should have been people who knew he was a bad guy.”
FRAUD AND WRONGFUL DEATH
The healthcare fraud occurred on top of the alleged malpractice. After Dr. Weinberger was brought to justice, he eventually pleaded guilty to 22 instances — his judge suspected there were many more — of billing insurers for procedures he never performed. In a court filing, Dr. Weinberger explained that in each instance, fictitious procedures were billed alongside one or more real ones.
Something like that happened to a patient named Gloria Gill, who won a $150,000 jury verdict against Dr. Weinberger for malpractice in 2011 after 2 new holes in her sinuses led to mucus recirculation and chronic sinusitis, according to a state appellate court decision upholding the verdict. As it turned out, Dr. Weinberger had billed Gill for 7 other procedures, including palate reduction and a septoplasty, or as the appellate court put it, “nearly every type of procedure within the field of sinus and nose surgery.”
The onslaught of litigation against Dr. Weinberger began not with a case of malpractice but with a case of wrongful death. A patient named Phyllis Barnes came to Dr. Weinberger in 2001 complaining of a sore throat, difficulty breathing, coughed-up blood, and headaches. Dr. Weinberger diagnosed the usual sinus problems and performed the usual surgery.
In fact, Barnes had laryngeal cancer, which killed her in 2004. Barnes’ family, represented by Kenneth J. Allen, sued Dr. Weinberger that year, saying that he had misdiagnosed her problem. Dr. Weinberger lost again, and in 2011, a jury ordered him to pay the family $13 million in compensatory and punitive damages.
AMERICA’S MOST WANTED PHYSICIAN
The wrongful death lawsuit of Phyllis Barnes in 2004 was a turning point in Dr. Weinberger’s career. His ex-wife, Dr. Kramer, testified that he was “constantly fretting and worrying about the lawsuit.”
“He had bought survival gear. He had bought books on how to disappear,” she said in a deposition. “He talked to me about moving away and living in a foreign country. It wasn’t until hindsight that I put the facts together.”
In September 2004, Dr. Weinberger and his wife took another yacht vacation, this time off the Greek island of Mykonos. On September 20, 2004, Dr. Kramer woke up to find her husband missing from their bed. Someone told her he had flown to Paris to have some diamonds set for her as a gift. “He never came back,” she said.
She soon declared bankruptcy, reporting almost $7 million in liabilities, including $3.5 million still owed on the 80-foot yacht.
For the next 5 years, Dr. Weinberger was on the lam, possibly surviving on a cache of loose diamonds he had amassed. Meanwhile, Dr. Kramer told the story of her missing husband on television talk shows such as Oprah and the true-crime TV series America’s Most Wanted.
Specifically, the FBI wanted Dr. Weinberger. In December 2006, a federal grand jury indicted him on 22 counts of submitting fraudulent insurance claims totalling $318,000. Finally, on December 15, 2009, tipped-off Italian police arrested the fugitive physician as he hid in a tent on a snowy mountainside in Courmayeur, Italy. He was extradited back to the United States and immediately locked up.
“I BETRAYED A SACRED TRUST”
Dr. Weinberger pleaded guilty to all the counts of healthcare fraud. In October 2012, his attorney asked the US District Court in Hammond, Indiana, to sentence his client to the 39 months he already had served. It was 2 months more than the maximum term suggested by the court sentencing guidelines that applied in Dr. Weinberger’s case. His time behind bars and public humiliation were sufficient to deter other healthcare providers from committing insurance fraud, wrote defense attorney Visvaldis Kupsis in a court filing.
“His life has been the absolute example of the ultimate fall from grace,” wrote Kupsis. “His example is the ultimate deterrent.”
Moreover, Dr. Weinberger was not likely to break the law again outside of prison, Kupsis wrote, owing in part to his “personal turnaround.” Shortly after arriving at the MCC, Weinberger volunteered to work as a kitchen orderly and then a cook for the 88 inmates in his unit. He tutored fellow prisoners in math and language to help them earn their GED degree. He organized and taught yoga classes that grew to number more than 100 inmates. And he led classes on the philosophy of nonviolence. Kupsis suggested that Dr. Weinberger would continue to “give back to those around him” once he was released.
At Dr. Weinberger’s sentencing on October 12, 2012, Kupsis changed his sentencing request to 48 months because stricter sentencing guidelines were in play that indicated a maximum term of 46 months. Kupsis was again requesting 2 months longer than the suggested maximum, for a total of 4 years. The 39 months already served would count toward that. If the judge agreed, Dr. Weinberger would be looking out the 5-inch-wide windows of the MCC for only 9 more months.
Dr. Weinberger asked for a break.
“I’m sorry,” he told US District Judge Philip Simon. “I lied. I stole. I betrayed a sacred trust. I have no excuse.
“The best I can do is spend every minute of every day for the rest of my life trying to redeem myself. Is redemption even possible? I have no idea. But please, Your Honor, give me a chance to try.”
Simon said that he was impressed by Dr. Weinberger’s life of service inside the prison. However, the judge rejected the request for a 4-year sentence and instead imposed 7 years. He explained that he was going to go far above the sentencing guidelines largely on account of the enormous fall-out from Dr. Weinberger’s flight from the United States. Patients were abandoned, many without access to their medical charts, the judge said. Some of them then endured more hardship when the receiver for the abandoned practice billed them for deductibles that Dr. Weinberger had previously waived. Employees were “left in a lurch” and cut off from their retirement plans for 5 years. Dr. Weinberger’s disappearance complicated the adjudication of more than 300 malpractice cases. And then there was the expense of hunting down Dr. Weinberger in Italy.
“It’s a tragedy, what’s going on here,” Simon said. “I have no idea how [Weinberger] arrived in this courtroom. Only he can answer that, whether it’s him feeling invisible or whether it’s just…hubris, or a sense of entitlement or just grandiosity or greed. Simple greed.”
Dr. Weinberger, he said, had used patients as “an ATM machine.”
Alluding to Dr. Weinberger’s history of “substantial use of alcohol,” Simon also ordered him to enter a drug and alcohol treatment program inside the MCC.
The 7-year sentence includes the time that Dr. Weinberger served in prison up to his sentencing. The Web site for the MCC states that Dr. Weinberger is scheduled for release on April 2, 2016.
Until then, his whereabouts will be no mystery. There are inmate counts 5 times a day at the MCC, 6 on weekends and holidays.