UPMC, DOJ settle whistleblower suit alleging 'world-renowned' surgeon performed, billed simultaneous surgeries

UPMC, its longtime cardiothoracic surgery chair and University of Pittsburgh Physicians have settled with the Department of Justice (DOJ) over a whistleblower lawsuit alleging fraudulent billing and unsafe simultaneous surgical practices, according to a Monday release from the government.

UPMC, UPP and James Luketich, M.D., have agreed to pay $8.5 million to resolve claims that the organizations had knowingly submitted “hundreds” of false claims to government programs since 2015.

Based on allegations brought by a former UPMC surgeon, Jonathan D’Cunha, M.D., and a subsequent two-year investigation by the DOJ, the False Claims suit filed in late 2021 alleged that Luketich “regularly” performed as many as three complex surgical procedures simultaneously.

“The complaint alleged that Dr. Luketich used his position as a trusted doctor to defraud the healthcare system,” Federal Bureau of Investigation Pittsburgh Special Agent in Charge Mike Nordwall said in a statement.

Luketich allegedly “failed to participate in all of the ‘key and critical’ portions of his surgeries, and forced his patients to endure hours of medically unnecessary anesthesia time, as he moved between operating rooms and attended to other patients or matters,” the DOJ wrote in its announcement.

Doing so would represent a violation of government regulations that prohibit teaching physicians such as Luketich from billing the government for concurrent surgeries.

In an emailed statement, Paul Wood, vice president and chief communications officer at UPMC, outlined compliance with these regulations and related billing guidance for “world-renowned cardiothoracic surgeon … Dr. Luketich’s most complicated, team-based surgical procedures” as the heart of the issue.

“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 wrote in the statement.

Alongside the $8.5 million payment, the defendants have agreed to create and effectuate a Corrective Action Plan for Luketich and submit to a one-year audit of his physician fee service billings to Medicare, DOJ said. The parties also agreed that UPMC can reach out to the Centers for Medicare & Medicaid Services for “information, guidance, assurance and/or an advisory opinion” on how it should bill for such surgeries going forward, DOJ and Wood said.

Efrem Grail, Luketich's legal counsel, told Fierce Healthcare their camp was "pleased" with the settlement and opens the door to better clarity surrounding teaching physicians' billing regulations.

"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,” Grail said in an email statement.

UPMC's also added that the system “has also reserved the right to challenge the relator [D’Cunha]'s share of the settlement."

The defendants had pushed to dismiss the complaint. The attempt was tossed by the court in June 2022, prompting the settlement, DOJ said.

“This Office is committed to safeguarding the Medicare and Medicaid programs, and to protecting those programs’ beneficiaries,” acting U.S. Attorney Troy Rivetti said in a release. “No medical provider—however renowned—is excepted from scrutiny or above the law.”

In year-end financial statements also released today, UPMC said the settlement did not have a material impact on its consolidated financial statements. The integrated academic health system reported a net loss of just over $1 billion from operating revenues exceeding $25.5 billion for the 2022 fiscal year ended Dec. 31, per the filing.  

Also ongoing is a legal battle between Luketich and D’Cunha over allegations that the latter had illegally wiretapped and disseminated a sensitive conversation between Luketich and his private physician in 2018. Luketich’s legal counsel has petitioned the court to issue a preliminary injunction suppressing the recording and related information. D’Cunha has countered with a third-party complaint against UPMC and some of its subsidiaries alleging they failed to protect him against Luketich’s claims.