Judge rejects plea for nose doc who hid in Italy

AP News
Posted: Apr 27, 2011 1:23 PM
Judge rejects plea for nose doc who hid in Italy

A federal judge on Wednesday rejected a plea agreement calling for a former Indiana surgeon captured in Italy after five years on the run to spend four years in prison, saying he wasn't confident the deal took into account the magnitude of the man's crimes.

Mark Weinberger once operated a Merrillville nose and sinus clinic, where prosecutors say he billed insurers and patients for procedures he didn't perform.

U.S. District Judge Philip Simon asked why the U.S. attorney's office had limited its investigation to 22 cases, saying he received a letter from an insurance company indicating there were at least 53 more victims. He also questioned whether the $318,000 in restitution the deal called for was sufficient, saying that during the 20-month span covered by the investigation Weinberger earned $27 million and netted $7 million after expenses.

Simon said he didn't feel as if he had enough information to know whether the deal was adequate.

"In many ways, I feel like I'm operating in the dark," he said.

Weinberger pleaded guilty in October to 22 counts of health care fraud, but he withdrew that plea after Simon announced his decision. A status conference will be held in about a month to determine the next step in the case. Simon said the two sides could reach another plea agreement or a trial date could be set then. Attorneys have said a trial would take weeks.

Simon said he was not influenced by letters from at least 18 former patients who had asked him to reject the plea deal, saying the focus of many of their complaints were about whether Weinberger was a good doctor or had acted negligently. Simon said that was a matter for civil courts.

"None of that has anything to do with this case," he said.

Weinberger's attorney, Adam Tavitas, declined to comment after the hearing, which lasted about 15 minutes. He and fellow defense attorney Stephen Scheele had urged Simon in an 18-page memorandum to accept the plea, saying the four-year sentence would exceed federal sentencing guidelines by two to 10 months. They also said the sentencing was separate from the hundreds of civil lawsuits Weinberger is facing.

Assistant U.S. Attorney Diane Berkowitz also declined to comment Wednesday.

Weinberger had at least one supporter at the hearing, his brother, Fred, who had written Simon saying his brother "is not the villain the media makes him out to be." Fred Weinberger declined to comment after the hearing.

Wednesday's hearing came a month after a Lake County Superior Court jury ordered Weinberger to pay $13 million to relatives of Phyllis Barnes of Valparaiso. Weinberger treated Barnes for sinus problems but didn't diagnose the advanced throat cancer that killed her.

Peggy Hood of Valparaiso, Barnes' sister, said she was pleased the deal had been rejected but she thought former patients' concerns should be a factor in any plea deal.

"I think it's got to be taken into consideration based on what he did to these people," she said.

Another former patient, Bill Boyer of Gary, who won a $300,000 medical malpractice lawsuit against Weinberger last August, said by telephone that he didn't care why the judge rejected the deal.

"I just want him to get the sentence he deserves. I think he should get at least 10 years without the possibility of parole and be ordered to pay restitution," said Boyer, who has not yet received any money from Weinberger.

Kenneth J. Allen, the attorney for Barnes' daughter, Shawn, and other former Weinberger patients, said his clients want to make sure Weinberger doesn't get out of prison and go somewhere else to practice medicine.

"We want him to stay in jail," he said. "That's where he belongs."

Another attorney, David Cutshaw, whose Indianapolis law firm has more than 280 lawsuits pending against Weinberger, said in many cases the doctor not only didn't do the surgery he was supposed to do, he actually made things worse.

Weinberger was arrested on a mountain in Italy in December 2009, more than five years after he disappeared during a vacation.