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Dr. on "America's most wanted" captured & sued for med-mal.

CASE ON POINT: Riggs v. Weinberger, 45A03-1109-CT-394 INCA (10/12/2012)-IN

ISSUE: It is most unusual for patients to find their physicians shown on television in "America's Most Wanted." It is more unusual to find that the physician is captured hiding in tent on the side of a mountain in Italy, 5 years later. That was the situation in this interesting Indiana case.

CASE FACTS: Mark Ashmann and Jeffrey Riggs were both patients of Drs. Mark S. Weinberger and Mark Weinberger, d/b/a as Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC. The plaintiffs filed their respective suits for medical malpractice against Drs.Weinberger and the Weinberger Entities on September 16, 2010, and November 24, 2010, respectively. Mark alleged that he became a patient on April 3, 2003. He further alleged that Dr. Weinberger failed to comply with the applicable standard of care and that as a direct and proximate result of his acts and omissions, Mark suffered and would continue to suffer future "great pain, emotional distress and mental trauma." Mark gave a detailed description of his emotional injuries in his Reply Submission to a Medical Review panel, describing how finding out that Dr. Weinberger fled the country and appeared on "America's Most Wanted," after he learned that the doctor had drilled holes in the wrong places in his maxillary sinuses, and that the doctor had failed to perform procedures that he said he would perform, leaving the plaintiffs with a feeling of being "duped." Jeffrey's Reply Submission to the Medical Review panel mirrored Mark's Reply. Dr. Weinberger and the professional groups filed motions for Psychological Examinations asking the trial court to compel Mark and Jeffrey to submit to psychological examinations. On July 14, 2011, the trial court granted the motions, finding, inter alia, that the plaintiffs' claims of emotional distress in the case exceeded those of the typical plaintiff who claims emotional injuries arising from physical trauma as a result of another's negligent conduct. The trial court found that the emotional distress claims in this case arose not only from the date of the surgery at issue, but from a defendant's alleged activities long after surgery was completed. The court concluded that the nature of the emotional distress was more akin to negligent infliction of emotional distress, and was not the typical claim for emotional distress injuries, which is evaluated by a jury without the assistance of expert testimony. Accordingly, the court ordered the plaintiffs to submit to examinations. They appealed.

COURT'S OPINION: The Court of Appeals of Indiana affirmed the order of the trial court, which granted the defendant's motion to require the plaintiff's to submit to an examination, since the plaintiffs had claimed not only injuries arising from the allegedly negligent surgery, but because of the fact that the circumstances created by virtue of the fact that the physician had fled the country and was in hiding, and was the subject of an episode of the television show "America's Most Wanted" presented extraordinary circumstances, which allegedly led to their claim that they not only suffered emotional distress in the past but would continue to sutler emotional distress in the future due to the extraordinary circumstances the doctor created by fleeing the country and hiding in Italy, not to mention the distress when the found the physician attempted to commit suicide when he was captured five years after the television show.

LEGAL COMMENTARY: The court found that the plaintiffs put their mental condition in controversy and that the defendants established "good cause" for requesting the examinations. This was so despite the fact that it was five years after the episode was shown on "America's Most Wanted" that the doctor was found hiding in a tent in Italy and, attempted suicide when apprehended by law enforcement authorities. In fact, the court viewed the foregoing facts as justifying the defendant's right to have the plaintiffs examined due to the allegedly unusual emotional distress suffered by the plaintiffs. Further, the court noted that it was eight years since the plaintiffs' alleged mental trauma began, which was related to the fact that Dr. Weinberger allegedly drilled holes in the wrong places in their sinuses. Editor's Note: Under Indiana law; cited in a footnote to the court's decision, when the mental or physical condition of a party, ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner; conditions, and scope of the examination and the person or persons to be examined. Was there really good cause in this case? Hadn't the doctor, by his conduct, created good cause?

MEDICALLAW'S REGAN REPORT ISSN 1528-8463[R] 2012, published monthly since 1960, is published in Cranston Rhode Island, by MEDICAL LAW PUBLISHING, Inc., EDITOR & PUBLISHER: A. DAVID TAMMELLE0 JD. ALL RIGHTS RESERVED. REPUBLICATION AND/OR REPRINTING WITHOUT WRITTEN PERMISSION IS PROHIBITED! Subscriptions: $102.00 per year (12 issues) sent by First Class Mail. Back Issues are $12.00. Binders, with Logo, are available at $25.00 (including S & H). To Subscribe: Telephone (401) 421-4747, Fax (401) 521-9226, E-Mail 24/7, or Mail to Medical Law Publishing, Inc., PO Box 8186, Cranston RI 02920. Cases and editorial comments are presented for the information of subscribers and readers. This material is not intended as legal advice and should not be used in lieu of such advice. For legal advice on specific medical issues, subscribers and readers are directed to consult with local legal counsel.

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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Oct 1, 2012
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