Monday, May 2, 2011

Bad Doctor Plea Deal Rejected by Offended Federal Judge

Mark Taylor reports at the Chicago Sun Times on the rejected plea deal for a notorious "Nose Doctor,:"

"A federal judge Wednesday rejected the plea agreement between prosecutors and Mark Weinberger, the Merrillville doctor charged with 22 counts of health care fraud. U.S. District Judge Philip Simon said the 4-year prison sentence and $366,000 in restitution “does not take into account the criminal conduct” of Weinberger, who also faces 350 medical malpractice lawsuits alleging unnecessary surgery and negligence.  [Jusge] Simon said each of the 22 counts represents a patient whose insurer had been defrauded by Weinberger, who authorities said grossed $27 million and netted $7 million during the period in question.

'The problem I’m having is that I don’t know why the government limited its investigation to the 22 counts,'  Simon said. He said court documents showed Weinberger performed hundreds, perhaps thousands of surgeries.  'We’re now supposed to accept that this is the entire scope of the fraud?' he told Weinberger and a courtroom of attorneys and Weinberger patients in federal court in Hammond.
He said he has too many doubts about whether the agreement adequately reflects the 'seriousness and scope of the case.'

After Simon rejected the plea deal, Weinberger withdrew his guilty plea and the two sides began preparing for a trial. If found guilty, Weinberger would face a maximum of 10 years in prison on each of the 22 counts and a maximum fine of $5.5 million. In the rejected deal, Weinberger had admitted billing for procedures he did not perform and agreed not to bill federal health programs again. He also agreed to surrender any profits from magazine, movie, TV or book deals until he had paid all restitution.

Throughout the hearing Weinberger, who was dressed in an orange, short-sleeved prison jumpsuit and white T-shirt with slicked-back hair, followed Simon’s words intently. He barely spoke except to agree to withdraw his guilty plea and was quickly hustled from the courtroom after Simon left.

Valparaiso attorney Kenneth Allen, who won a $13 million civil verdict against Weinberger earlier this year, was happy Simon rejected the plea agreement. Allen said the ear, nose and throat specialist deserves greater punishment. 'He needs not to treat any more patients for the rest of his life,' Allen said. 'Without question, he would harm patients again.'

A Hammond jury found Weinberger at fault in the wrongful death of Phyllis Barnes, Hood’s sister and Shawn Barnes’ mother, and said he failed to diagnose the cancer that claimed her life at age 50 in 2004.  Hood said she was pleased by Simon’s decision. 'I feel like it’s being treated now with the seriousness it deserves,' Hood said. 'Four years was a slap in the face.'

Weinberger fled the country in 2004 facing hundreds of medical malpractice lawsuits and government investigators. He vanished in Europe and was an international fugitive until he was found camping in the foothills of the Italian Alps in 2009.  Weinberger’s saga will be the subject of an episode of the TV show 'American Greed' May 4.
At FCI, Morgantown there were at least a dozen physicians. 

I've already written about Dr. Roger Pellmann, he was the exception to the rule--most of the doctors were incarcerated in connection with Medicare fraud or for criminal roles they played in pill mills. The docs organized themselves into a local medical association and conducted weekly seminars for one another on issues in their respective specialties.   While each of the doctors generously gave their time to other inmates they did not practice medicine.  One of the inmate doctors, Randy, was originally at an FCI near Atlanta, GA close to his home.  While there another inmate collapsed and died.  Randy spent an hour or more attempting to keep the inmate alive through chest compressions.  Afterwards the BOP thanked Doctor Randy, and shipped him to Morgantown.   Incarcerated doctors don't practice medicine, and incarcerated lawyers don't practice law.  Violate this rule and there is an unpleasant consequence. 

In my case, my locker and paperwork drew unusual scrutiny from the authorities.  For awhile it appeared as if my locker and papers were being rifled weekly.  My white collar cohorts suspected that the flurry of pro se filings coming from Carlson unit were being attributed by BOP to my presence.  This was absurd since I know less than nothing about criminal defense law, and I was not interested in opening up a Morgantown practice.   It was BOP paranoia.

The story about Dr. Weinberger was striking from the standpoint of the Judge Simon's actions.  Yeah, I know a federal judge is in no way obligated to accept a plea bargain, but it does seem that Judge Simon is stepping out of his judicial role and into the shoes of the US Attorney.  Judge Simon's critique certainly sounds like the Judge has (impermissibly?) pre-judged the guilt of Dr. Weinberger (who sounds like a real piece of work...)  It will be interesting to see how this plays out.


  1. As judges play a role in preventing the conviction of the innocent by dismissing indictments or judgment notwithstanding the verdict, they also play a role in ascertaining that the government has not acted inappropriately in ignoring the nature or severity of an individual's crime.

    Since this related to guilty plea, and the sentence to be imposed, it alls outside the realm of the judge presupposing guilt. The defendant was conceding guilt, removing the presumption of innocence. The government could have responded that it believed the plea deal fully encompassed all wrongs, or offered some rationale for leaving hundreds, perhaps thousands, of crimes on the table. The government had the ability to explain why it was prepared to "forgive" the defendant his trespasses. It either did not or could not explain it's position.

    Since the judge's role is to impose sentence for the crimes committed by the defendant, an aspect of that role requires him to oversee the propriety of the deal, to safeguard societal interests even when the executive branch fails, whether because of innocence or guilt. The judge fulfilled that role. We can only hope he would have been equally willing to do so had the plea deal overstated the defendant's guilt.

  2. SHG--

    Thank you for laying out the logic and practice of plea deals in federal court. For a non-CDL, and I'm sure for non-specialist readers of this story--it is all very confusing and troubling to see a trial judge take what seems to be an activits prosecutorial role.


  3. Most Federal Judges were prosecutors prior to being appointed to the bench. The truth is that a conviction signifies, at best, no more than that the trial judge believed the testimony of some witness rather than that of others, but the believed witnesses may have lied or been honestly mistaken. Unfortunately, the fact-finding in Federal Court is bias, especially since the prosecutor can proffer a statement.