Category Archives: Reuben Guttman Articles

“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/.

Workplace whistleblowers and a fear of losing federal funds are expected to play vital roles in ensuring compliance with COVID-19 vaccine mandates ordered by President Joe Biden’s administration for U.S. businesses, nursing homes and hospitals, according to experts.

Biden announced last Thursday that his administration will enforce the vaccine mandates starting on Jan. 4. The rules apply to employers with at least 100 workers, federal contractors and employees of nursing homes and other healthcare facilities that receive reimbursements under the Medicare and Medicaid government healthcare programs.

On Saturday, a federal appeals court suspended the new vaccine and testing requirement for private companies while the court considers it in more depth. It gave the Justice Department until late Monday to respond. The portion of the mandate for the healthcare sector is not affected by Saturday’s ruling.

If the rule goes into effect, the U.S. Occupational Safety and Health Administration (OSHA), which enforces work safety rules, is not likely to immediately swoop in to ensure that vaccination and testing rules are being followed, experts said.

The Centers for Medicare & Medicaid Services (CMS), the regulator for the two federal health programs, does not typically survey accredited healthcare providers unless there is a complaint or a need for recertification, according to Sandy DiVarco, a partner at the firm McDermott Will & Emery who represents healthcare providers.

Since patients and clients do not have access to staff vaccination records, those complaints would likely come from another staff member, DiVarco added.

“On a stakeholder call, CMS reiterated their desire to work with providers to come into compliance and not to sort of send SWAT teams to go out and look for problems,” DiVarco said.

Healthcare facilities could lose their access to Medicare and Medicaid funds if they fail to heed the vaccine requirements. Medicare serves people aged 65 and older and the disabled while Medicaid serves the poor.

“For most hospitals across the country not being able to participate in Medicare would be crippling,” said Akin Demehin, the American Hospital Association’s director of policy.

The healthcare workers mandate applies to more than 10 million employees, around 70% of whom already have been vaccinated. It covers around 76,000 healthcare providers that receive Medicare or Medicaid reimbursements including hospitals, nursing homes, dialysis centers, ambulatory surgical settings and home-health agencies.

For the private employer rules, OSHA has an estimated 800 safety and compliance inspectors to cover more than 100,000 companies covered by the mandate. The agency likely will rely on whistleblowers concerned about unvaccinated co-workers or that unvaccinated people are not being tested as required, said James Hermon, a labor and employment expert with the firm Dykema Gossett.

Hermon predicted that OSHA will hit a couple of big employers with major fines soon after the mandate takes effect.

“That will be done intentionally to put some virtual heads on spikes,” Hermon said. Each violation can bring a fine of nearly $14,000.

The financial threat from a federal law called the False Claims Act, which rewards whistleblowers for reports of fraud that results in losses for the government, might ensure compliance with the vaccine rules better than OSHA’s penalties, according to one expert.

“We’re interested in these cases and we’ve been looking at them,” said Reuben Guttman, a whistleblower lawyer with the firm Guttman, Buschner & Brooks, who said he has been talking to unions. “The idea of using the False Claims Act to enforce health and safety standards is not novel.”

(Reporting by Diane Bartz, Ahmed Aboulenein and Tom Hals; Editing by Will Dunham)

Source: https://kfgo.com/2021/11/08/whistleblowers-and-fears-of-losing-funds-key-to-enforcing-u-s-vaccine-rules/.