SOUTH BEND, Indiana – A former Indiana surgeon who was arrested in Italy after five years on the run is due to be sentenced Friday for billing insurers and patients for procedures he didn't perform.
Mark Weinberger, who ran a Merrillville nose and sinus clinic until he disappeared during a European vacation, pleaded guilty to 22 counts of health care fraud in a deal that calls for a sentence of no more than of 10 years in prison.
Weinberger has spent nearly three years behind bars since his December 2009 arrest on a snowy Italian mountainside, where authorities say he had been living in a tent. He stabbed himself in the neck while being taken into custody and spent time recovering in a hospital before being returned to the U.S.
His lawyer, Visvaldis Kupsis, filed a sentencing memorandum Monday asking that Weinberger be sentenced to the prison time he's already served during Friday's hearing in Hammond, saying he's suffered enough.
But U.S. District Judge Philip Simon last year rejected an initial plea deal that called for a four-year prison term, saying he wasn't confident it accounted for the scope of Weinberger's crimes.
Some of those affected by Weinberger, including former patients, say even a 10-year term might not be enough because of the pain he inflicted.
"I still spend $1,000 a month on medication for what he did to me," said Bill Boyer, of Gary, who won a $300,000 medical malpractice judgment against Weinberger but hasn't received any money because the case is being appealed. "If he does get released for time done, I'll lose all faith in anything in the American justice system."
Boyer said he wrote to Simon to recommend that he sentence Weinberger to 10 to 20 years in prison.
Kupsis, in his sentencing memorandum filed with the U.S. Department of Probation, asked for a prison term of 30 to 37 months for Weinberger, who has been locked up for nearly 34 months. Kupsis said his client deserves five months' credit for good behavior because he volunteers as a cook and GED tutor and started an inmate yoga program at the Chicago prison where he's being held.
"This is a substantial amount of incarceration, particularly in a case of an individual who has no criminal history and has never had the benefit of probation or less drastic means of punishment to correct his actions," Kupsis wrote.
He also wrote the government has determined Weinberger has submitted $318,000 in false billings, of which he was paid $108,332.
Kupsis says Anthem Insurance Co. claimed at the April 22, 2011, sentencing that they had identified 56 patients who also might have been victims of fraud but has not provided credible evidence to back the claim. Kupsis says Anthem has "simply asked to be reimbursed for every penny that it has ever paid to the defendant."
Barry Rooth, a Merrillville attorney for 288 former patients, took exception to Kupsis' claim that Weinberger didn't perform fraud in any cases other than those to which he's pleaded guilty, saying that of the 90 cases he has submitted to medical review panels, he has yet to identify a single case in which Weinberger performed the surgeries for which he billed.
Rooth said he wrote Simon to make sure he knew that what Kupsis wrote was incorrect.
"We felt it important to the judge to point out that we have experience that contradicts the statement made by Weinberger in his sentencing memorandum," he said. "We felt it important to speak up on behalf of our clients whose cases were not charged."
Kupsis contends that Weinberger already has been punished through the media attention he has received, through the monetary judgments against him, through the loss of his practice and his inability to work as a doctor again.
"His life has been the absolute example of the ultimate fall from grace. His example is the ultimate deterrence," Kupsis wrote.
He also asked the court to waive a fine for Weinberger "due to his limited finances and significant restitution penalty."