US government suit against UPMC and star surgeon moves forward

PITTSBURGH — Today marked a major step forward in an explosive whistleblower lawsuit against University of Pittsburgh Medical Center, its physicians group, and the longtime head of its Department of Cardiothoracic Surgery.

U.S. District Court Judge Cathy Bissoon denied the hospital’s efforts to get a false-billing case that alleges patient harm dismissed.

In the federal False Claims Act complaint, the government said UPMC and its star surgeon Dr. James Luketich “regularly sacrificed patient health in order to increase surgical volume” and “maximize profit.”

The government’s lawsuit alleges Luketich repeatedly put patients at increased risk by conducting as many as three complex surgeries at the same time without being present for all key and critical portions, causing patients to endure hours of unnecessary anesthesia time. The lawsuit contends that Luketich then falsely billed Medicare, Medicaid and other government programs for those procedures.

The complaint also claims that “UPMC has persistently ignored or minimized complaints by employees and staff regarding Luketich” and “protected him from meaningful sanction; refused to curtail his surgical practice; and continued to allow Luketich to skirt the rules and endanger his patients.”

Motion to Dismiss Denied

In the order denying the defendants’ motion to dismiss the case, the judge wrote, “Judicial experience and common sense dictate here that the Government has stated plausible FCA (False Claims Act) claims against Defendants.”

She went on to quote the Court of Appeals in another case writing:

With all this smoke, a fire is plausible. So this case deserves to go to discovery.

Once the discovery is in, it may turn out that there is no fire. We do not prejudge the merits.

Taxpayers Against Fraud, a nonprofit which monitors False Claims Act and other government lawsuits, called the judge’s order an important step forward.

“It sends a signal to other healthcare providers that these kinds of allegations are going to be taken very seriously, and that sends a very powerful message across the country,” TAF President and CEO Jeb White said.

Alleged Patient Harm

The complaint says several of Luketich’s patients suffered complications due to the practices cited in the complaint, including “painful pressure ulcers; deep tissue injuries; and in at least two cases amputations.”

Redacted portions of the complaint, just recently unsealed, also provided more detail.

One section alleges there are at least 15 examples of these practices between 2015 and 2019.

One unredacted example from 2016 cites an internal incident report which made these claims:

Two patients were undergoing surgery by Dr. Luketich in [ORs] 26 and 27. The patients were both under general anesthesia with towels covering their surgical wounds. There was no surgical progress in either case between 3 and 7pm. At 6pm, a third OR was prepared for another urgent case for Dr. Luketich. No one from the OR was able to locate Dr. Luketich by telephone, in any OR, or in his outpatient clinic until 6:45 pm when he arrived in the PACU.

Another previously blacked out section provided an example of one of Luketich’s colleagues raising concerns about his behavior:

In September 2016, Joel Nelson, M.D., who was then UPMC’s Chief Clinical Officer, acknowledged in an email to other UPMC executives that Luketich ‘is simultaneously running long, complicated cases that require his attention; when he is not there, things do not progress. [Dr. Johnson] wants to limit this at the scheduling level, but we all know Jim [Luketich] will find work-arounds or simply ignore the rules. So it becomes a meter [sic] of what we do when we find him not in compliance.’

And another section recently made public says UPMC’s chief quality officer and the longtime head of UPMC’s surgical services oversight committee exchanged emails and agreed that it’s “crazy” and “against the law” for UPMC physicians to “service more than 2 patients simultaneously except in the case of emergency.”

Alleged Lack of Action

TAF President Jeb White said the allegations that UPMC did not take enough action to stop Dr. Luketich’s behavior are likely another key factor of concern for the government.

“That’s a real thing that raises a lot of red flags for a lot of people — whether there’s a speak-up culture or a culture to turn a blind eye. And the allegation is UPMC turned a blind eye to what happened here,” White said.

The whistleblower who initiated the case was former UPMC cardiothoracic surgeon Dr. Jonathan D’Cunha, who is now at the Mayo Clinic in Phoenix. The complaint says D’Cunha worked closely with Luketich and observed the practices cited in the suit.

Last fall, the government decided to partially intervene in D’Cunha’s whistleblower complaint, which means the government has taken over the case and is pursuing his allegations.

White called that intervention a major step forward because the United States Department of Justice only intervenes in about 20% of all False Claims Act cases due to limited time and resources.

“These allegations are concerning to the government, and they tend to only get involved in very big cases or cases of potential harm,” White said.

When contacted today, UPMC declined to comment on the judge’s order. In a past statement, though, the hospital said that it would vigorously defend against the suit and that the government’s claims are “based on a misapplication or misinterpretation of UPMC’s internal polices and CMS (Centers for Medicaid and Medicare) guidance, neither of which can support a claim for fraudulent billing.”

The U.S. Attorney’s Office for the Western District of Pennsylvania also declined to comment on the judge’s order to deny the motion to dismiss.

The case will now move to the discovery phase in federal court, where both parties exchange information and evidence they plan to present at trial. It is worth noting that, in her order, the judge appeared to encourage the parties to pursue mediation, which could lead to a settlement.

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