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“Patients don’t know their doctors are serving two masters.”

UPMC, a renowned cardiothoracic surgeon there and a physicians group will pay the federal government $8.5 million to settle a lawsuit accusing them of knowingly submitting hundreds of false claims to Medicare, failing to follow medical standards for surgery and knowingly placing patients at risk.

he U.S. Attorney’s Office filed a lawsuit against UPMC, Dr. James Luketich and University of Pittsburgh Physicians in September 2021 alleging Luketich was regularly scheduling multiple complex surgeries at the same time, forcing him to move between operating rooms and sometimes hospitals, while requiring patients to stay under additional hours of anesthesia.

In one case, a patient lost parts of a hand and another lost a lower leg as a result, the government said.

The U.S. Attorney’s Office said the settlement will resolve the claims in the case.

Paul Wood, a UPMC spokesman, said at issue in the complaint was compliance with Centers for Medicare and Medicaid Services teaching physician regulations and related billing guidance, as well as UPMC’s internal surgical policies.

“While UPMC continues to believe Dr. Luketich’s surgical practice complies with CMS’s requirements, it has agreed to pay $8.5 million to the government to avoid the distraction and expense of further litigation,” Wood said.

In the future, he continued, UPMC will be permitted to seek clarity from Medicare on how it should bill for complex procedures.

Efrem Grail, the attorney representing Luketich, said he and his client are pleased the settlement ends the government’s case.

“Medical schools and their hospitals have sought clarity about the billing regulation for teaching physicians at issue here for years, and the United States has never provided it,” Grail said. “This settlement provides a mechanism we hope will lead to authoritative guidance so that universally respected surgeons like Dr. Luketich can return their focus to training young doctors to save lives without having to put up with baseless claims of fraud.”

In addition to the $8.5 million payment, the defendants are required to create a corrective action plan for Luketich and submit to a yearlong, third-party audit of Luketich’s billings to Medicare for physician services.

The initial lawsuit was filed following allegations brought by former UPMC surgeon Dr. Jonathan D’Cunha, who worked for the health system from 2012 to 2019 and served as the surgical director of lung transplantation.

D’Cunha, who now practices in Arizona, filed a federal whistleblower complaint in April 2019.

He also is involved in an ongoing civil dispute in Allegheny County Common Pleas Court regarding Luketich’s actions.

Bernadette Fedorka and her husband are suing Luketich and UPMC alleging that she received improper care because of the ongoing practices at play in the federal complaint. Luketich was not her treating physician and did not care for her.

In that civil case, UPMC and Luketich filed a motion for a preliminary injunction seeking to prohibit the parties from using a 2018 secretly obtained recording between Luketich and his doctor, who had been for years treating him with suboxone.

Judge Philip Ignelzi held several days of contentious hearings on the matter last year, and the parties filed briefs outlining their positions on the injunction last week.

A ruling is expected on the injunction request soon.

As part of the federal complaint, the U.S. Attorney’s Office said UPMC “regularly sacrificed patient health in order to increase surgical volume,” while violating Medicare rules.

Those rules require teaching hospitals to have a teaching physician in the operating room during “critical portions” of a procedure and “immediately available” throughout the procedure.

“This is an important settlement and a just conclusion to the United States’ investigation into Dr. Luketich’s surgical and billing practices, and UPMC and UPP’s acceptance of those practices,” said Acting U.S. Attorney Troy Rivetti. “This office is committed to safeguarding the Medicare and Medicaid programs, and to protecting those programs’ beneficiaries. No medical provider — however renowned — is excepted from scrutiny or above the law.”

There have been at least three other cases nationally in which large hospital systems have settled similar billing allegations over a lack of oversight in the operating room and simultaneous surgical procedures.

Massachusetts General Hospital in Boston paid $14.6 million last year; St. Joseph’s Hospital in Phoenix paid $10 million in 2021; and Lenox Hill Hospital in New York City paid $12.3 million in a settlement in 2019.

Attorney Reuben Guttman, who was counsel in the New York and Boston cases, called the conduct involved in these types of claims “egregious,” saying the surgeons involved are taking advantage of their patients.

“These practices at teaching hospitals across the country are pervasive, and it’s a real problem,” Guttman said. “Patients don’t know their doctors are serving two masters.”

Although the financial settlement in the UPMC case is small in comparison to the hospital system’s $24 billion in annual revenue, Guttman said it is still important.

“The money is going to be inconsequential. But it’s more you’re changing the standard of care,” he said. “Every single settlement like this is important because it sheds light on a practice that is pervasive.”

Because of this settlement, Guttman said plaintiffs in any medical malpractice cases against UPMC going forward will be able to ask what other cases their doctors were working on at the same time.

“It’s going to expose UPMC to a lot of inquiry in medical malpractice cases, and that will drive change,” he said.

Guttman suggested UPMC’s insurance carriers also will impose new requirements on the health system to limit that risk.

The practice of hosting multiple procedures at the same time, Guttman said, is another example of money driving medical care, noting that fraud like this ends up with Medicare and Medicaid being cheated and patients receiving less-favorable outcomes.

Guttman suspects there are similar cases in the pipeline. He said every time a case such as this one settles, physicians working in a setting where fraud is occurring will feel emboldened to step forward as a whistleblower.

“UPMC can’t just put this in a box and say this is done,” Guttman said. “UPMC is misrepresenting the settlement as saying it’s a billing problem. It’s a patient care problem that they’ve billed for.”

Source: Paul Reed, Tribune-Review. Article available at https://triblive.com/news/health-now/upmc-head-of-cardiothoracic-surgery-will-pay-8-5m-to-feds-to-settle-lawsuit/.

A new book on pretrial advocacy, published this week by the National Institute for Trial Advocacy (NITA) and Wolters Kluwer, takes on a world of litigation that has been radically transformed in recent years by remote proceedings and other practice norms that often deliver resolution long before litigants face off in the courtroom. (Available in print and e-book here.)

In Pretrial Advocacy, authors Reuben A. Guttman and J.C. Lore address the challenges of litigating in a civil justice system that is overburdened yet essential to implementation of the rule of law. Even as nearly 90% of all civil matters never come before a jury, lawyers must nevertheless prepare cases as though they will. Because modern civil litigation is, the authors say, “front loaded,” lawyers are challenged early on in the pretrial process to consider the rules of evidence and civil procedure as they gather information to plead a plausible complaint.

“The pretrial process is laden with unwritten norms. All parties, from litigants to jurists, struggle to provide efficient resolutions while balancing due process,” said Lore, a Distinguished Clinical professor and Director of Trial Advocacy at Rutgers Law School. “We wanted to write something that explains it all.” The strategies and techniques outlined in Pretrial Advocacy put forward responsive new approaches to teaching advocacy in both law school and continuing legal education settings.

In addition to practical tips and insights from some of the nation’s foremost jurists and practitioners, Pretrial Advocacy features a foreword by retired U.S. District Court Judge for the District of Massachusetts and Harvard Law faculty member Nancy Gertner. “Pretrial Advocacy fills an important space for litigators,” Gertner said. “It teaches how to try cases from the moment  a client contacts the lawyer through the trial, encouraging lawyers to engage in strategic decisions about pretrial discovery and motion practice. Why depose this witness rather than another?  What is the purpose? What are the salient documents—not every single one, not just the few ‘gotcha’ documents, but those that build the narrative.”

Pretrial Advocacy closes with chapter dedicated to public interest litigation. “We thought a chapter on public interest litigation was necessary because there are too many people—from immigrants to victims of race and gender discrimination and whistleblowers—seeking to have their voice heard, and they need competent representation,” said Guttman. Guttman is a founding partner of the Washington, D.C. law firm of Guttman, Buschner & Brooks, PLLC, where he has represented clients in False Claims cases in matters returning more than $6 billion to the United States government.

Guttman and Lore are available to the media to comment on matters in civil litigation and the civil justice system.

Pretrial Advocacy is the ideal textbook for law school clinics, law school  pretrial litigation courses, and practicing lawyers. Both practical and theoretical, it teaches litigation as a process informed by rules and cases, but also by strategic considerations. Its hands-on and accessible text makes it a perfect reference for learning skills and a continuing reference.

Learn more here.