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Feds in rare battle with UPMC, star doctor after national scandal over risks of concurrent surgeries

After national scandal over risks of concurrent surgeries, hospitals launched critical reforms

Pittsburgh, PA (October 10, 2021) -- Dr. James Luketich has been a star surgeon and rainmaker at UPMC, taking charge of the giant medical provider's cardiothoracic care unit and turning it into one of the nation’s busiest.

He is known for tackling difficult surgeries that other doctors wouldn't touch, a practice that was touted in a UPMC television advertisement featuring the celebrated practitioner.

But a rare U.S. Justice Department lawsuit against the surgeon and UPMC, alleging that he unlawfully billed the government when he performed multiple surgeries at the same time and severely harmed patients in the process, stunned national experts who say such cases have largely disappeared since a scandal unfolded in Boston over a similar case in 2015.

The lawsuit filed against Dr. Luketich and UPMC last month has already triggered proposed legislation in Pennsylvania that seeks to protect patients if their doctors are carrying out more than one procedure at a time and encourage whistleblowers to report fraud.

The government's case, which UPMC vigorously disputes, raises questions about the practices of a nonprofit corporation that touts itself as a leading health care institution that places a priority on the safety of its patients.

It's also a case that questions UPMC leadership, supported by emails and correspondence that show top supervisors were alarmed about the doctor's practices and that he allegedly violated the rules that were designed to rein him in, the Justice Department claims.

Not since the U.S. Senate issued a report five years ago about the dangers of concurrent surgeries has a case this prominent surfaced, say medical experts, who know of only one — in Arizona — where the federal government has pressed a false claims suit of this kind in recent years.

UPMC was among 20 teaching hospitals surveyed by the Senate committee after the risks of doctors performing overlapping surgeries emerged in Boston.

That inquiry was sparked by a series of stories in the Boston Globe in 2015 about Massachusetts General Hospital that triggered a flurry of activity that changed the culture in many operating rooms.

As a result of its probe, the Senate Finance Committee released a report in late 2016 that condemned concurrent surgeries. Earlier the same year, the American College of Surgeons created new and clearer protocols on concurrent and overlapping surgeries. And The Joint Commission — the organization that accredits most of the nation’s hospitals — created a rule to check on the compliance of hospitals with the new ACS guidelines.

One former senior staff member who worked on the Senate committee that wrote the 2016 report said that because the Boston case led to so many reforms, the alleged violations by UPMC are “something that shouldn’t have happened.”

The dangers of the surgeries caught “the attention of the major accrediting agency in the country for surgeons,” said the former staffer, who spoke to the Post-Gazette on the condition of anonymity because he is not allowed to publicly discuss the panel’s work.

“It [was] getting the attention from people on Capitol Hill," and the Senate committee was "interfacing directly with UPMC.”

The Justice Department's case against Dr. Luketich and UPMC — 47 pages in all — questions the practices of UPMC and accuses it of being driven by profit in allowing its star surgeon to fraudulently bill for millions of dollars.

UPMC spokesman Paul Wood said in an emailed statement that the institution and Dr. Luketich "plan to vigorously defend against the government's claims," and that “no law or regulation prohibits 'concurrent’ or 'overlapping' surgeries or billing for those surgeries, let alone surgeries conducted by teams of surgeons like those led by Dr. Luketich."

Mr. Wood said the "government’s claims are, rather, based on a misapplication or misinterpretation of UPMC’s internal policies and [Centers for Medicare & Medicaid Services] guidance, neither of which can support a claim for fraudulent billing.”

Neither Dr. Luketich nor Jeffrey Romoff, the recently retired CEO who ran the institution at the time of the alleged incidents, responded to repeated interview requests.

Dr. Luketich’s attorney, Efrem Grail, declined to answer questions about the case, saying in an email: “The real truth in this story is the vast number of patients who are alive today and healthy only because of UPMC’s care and Dr. Luketich’s surgical skill and dedication.”

Several national experts interviewed by the Post-Gazette say they were surprised that UPMC would be the target of this kind of case now because most of the events alleged in the lawsuit took place at the same time many institutions were reining in their surgical practices in the wake of the Globe's series in 2015.

Other than the UPMC case, “I just have not heard a problem with it these last five years,” said Dr. David Hoyt, a former trauma surgeon who now is executive director of the ACS. “And I tend to hear when there’s something like this that pops up.”

The Globe's series “was a wake-up call to a lot of places,” said Dr. Doug Hanto, a former transplant surgeon and now chairman of the Surgical Ethics Working Group at the Center for Bioethics at Harvard Medical School.

“So I’m surprised when I read in the lawsuit that UPMC reviewed the Mass General problem, looked at their own policies, made changes and obviously tried to get Dr. Luketich to change his practices,” he said. “And I’m really surprised that, one, he didn’t change his practice, and, two, I’m surprised that there wasn’t more follow-up by the leadership of UPMC to put a stop to it. Because this was on everybody’s radar screen across the country.”

Dr. Hanto added, “I haven’t started calling my colleagues yet across the country, but I’ll bet they’re looking at this and saying, ‘You’ve got to be kidding me.’”

The federal case alleges that Dr. Luketich and UPMC benefited financially by improperly scheduling multiple surgeries and then claiming he was present when the most important parts of those surgeries — the “key” or “critical” portions — were taking place.

The lawsuit alleges that in many cases, it was impossible for him to be present for those important phases of the operations, as well as to be “immediately available” in the event he was needed, as required by the hospital itself.

While UMPC has disputed the government's claims, some of the most critical accusations against the doctor came directly from UPMC's own staff, the suit says.

For years, UPMC anesthesiologists, fellows, residents, nurses and other staff members complained about the doctor's practices, the suit states. On several occasions, "Luketich left the operating room mid-surgery, and then could not later be located on site by UPMC personnel and did not immediately respond to pages, calls, and/or text messages.”

When the issue over concurrent surgeries garnered headlines five years ago, the 20 hospitals that were surveyed by the Senate committee said they either had changed their internal guidelines to comply with the new ACS protocols and halted concurrent surgeries or were in the process of doing so.

In a recent email response to questions, Mr. Wood confirmed UPMC was among the 20 hospitals that worked with the Senate at the time, but he would not respond to a question about how the institution changed its guidelines.

State Rep. Tony DeLuca, D-Penn Hills, who is sponsoring legislation to better protect patients from the practice, said he was “appalled” by the case — the main reason he decided to push for the safeguards.

“Health care used to be about how we can take care of people,” he said. “But now it’s about how much money we can make.”

Mr. DeLuca said he was riled when he read the federal lawsuit: “I always thought the surgeon was always going to be there through the whole surgery.”

His proposed legislation would require Pennsylvania hospitals to tell patients if their surgeon could be doing two or more operations at once, create a state version of the federal False Claims act to encourage whistleblowers to report when hospitals improperly bill the state for surgeries, and create a position in hospitals where anonymous employees can report “sub-par care” to someone who would review the claims and possibly report them to the proper agency.

The case is the latest in a series of allegations that surgical departments at UPMC performed more surgeries to drive profit at the cost of the health of patients.

More than a decade ago, Dr. Thomas Starzl, the “father of transplantation” for whom UPMC’s transplant center is named, said his own research showed the hospital was performing more risky liver transplants and harming many patients under a former liver transplant chief, Dr. Amadeo Marcos.

Before Dr. Starzl’s research was published, two former UPMC surgeons told the Wall Street Journal in 2008 that the liver program was driven by the pursuit of profit — allegations that UPMC denied then and now.

In 2016, a whistleblower lawsuit said a move to give UPMC’s neurosurgeons a 28.5% bonus on volume for doing surgeries above a base number allegedly resulted in more medically complex and unnecessary surgeries — and made the neurosurgery department the most lucrative in the nation.

UPMC paid a $2.5 million settlement to resolve claims without admitting to wrongdoing involving surgeons improperly billing Medicare for procedures they were not allowed to under billing rules. Other claims by the whistleblowers, however, are still in court.

UPMC denies that there was any profit motive in driving the surgical departments.

“The supposed allegations that in 2008 Dr. Marcos was doing living donor liver transplants instead of cadaveric liver transplants with a goal of driving up revenue have never been substantiated or even litigated,” Mr. Wood said in an emailed reply to questions. “As for the allegations relating to UPMC’s Neurosurgery Department, that case was dismissed by the trial court, reinstated by the appellate court and remains in active litigation.”

Although Mr. Wood said in his response that no law bans concurrent or overlapping surgeries, there are nevertheless clear differences between the two — and both bring their own risks, said Steve Foreman, a professor of health care management at Robert Morris University.

“Whether the surgeries are concurrent or overlapping is a big deal,” Mr. Foreman, who has a Ph.D in health administration and health policy, said.

Overlapping surgeries mean a doctor starts a surgery as another one is ending, which is allowed as long as the key or critical portions of the surgeries do not take place at the same time, or the surgeon is "immediately available," or has a backup surgeon.

In concurrent surgeries, the operations take place at the same time, or start within minutes of one another, but the surgeon must also be present during the key or critical portions of those procedures, or be immediately available, or have a backup surgeon, the federal government says.

In the wake of the Mass General stories in 2015, several top UPMC officials had deep discussions about Dr. Luketich’s practices, and he was told to stop but did not, the lawsuit claims.

Mr. Wood said in an email that Dr. Luketich did change his behavior after being told he “overbooked” surgeries, although Mr. Wood would not say how it changed.

The lawsuit says there were examples in which Dr. Luketich clearly could have not been “immediately available,” as required by the federal government, when he had two or three surgeries at the same time, and there were even times when he could not be found to return to an operating room during a surgery.

To help make its argument, the federal case gives examples of Dr. Luketich’s surgery lineup during six days between November 2015 and May 2018. They show he scheduled multiple surgeries to start within minutes of each other — and routinely had three surgeries ongoing at the same time.

On one day, Nov. 17, 2017, he began three separate procedures in three separate UPMC Presbyterian operating rooms, at 7:10 a.m., 7:38 a.m. and 8 a.m. Until one ended at 9:44 a.m., all three procedures were ongoing at the same time, the suit claims.

On Nov. 17, 2015, he started one procedure at 7:12 a.m. at Presbyterian that did not end until 12:16 p.m., but at 7:55 a.m. he began another procedure at UPMC Mercy Hospital — 2 miles away, the suit states — that did not end until 8:36 a.m.

“As reflected by the above examples, Luketich cannot be — and is not — ‘immediately available’ for the non-key or non-critical portions of a surgical procedure when he's simultaneously performing a surgical procedure on another patient in another operating room," the suit states.

The lawsuit also alleges that numerous patients suffered severe injuries — having skin grafts or surgery to reduce swelling in body compartments — because they had to stay under anesthesia for longer than they would have otherwise to meet Dr. Luketich’s schedule.

Keeping a patient under anesthesia longer than necessary “is just inappropriate,” Dr. Hoyt of the ACS said. “You never keep a patient asleep longer than you need to.”

Dr. Piroska Kopar, director of the Center of Humanism and Ethics in Surgical Specialties at Washington University at the St. Louis School of Medicine, said it is a difficult for doctors who want “to do the most we can for the most people” while dealing with the “pressures to do more for the system.”

To try to balance that, “some hospitals have very strict policies to prevent concurrent surgeries,” she said, including rules that prevent surgeons from having more than one operation going at any one time, unless there is an emergency.

UPMC’s Mr. Wood said in an email that Dr. Luketich never violated the federal rule to be “immediately available” because if he was doing a second surgery, he always had another surgeon ready to step in for him, which federal and ACS rules allow.

“Dr. Luketich always had another fully qualified attending surgeon in the room when he was engaged elsewhere,” Mr. Wood wrote.

Dr. Hanto and others, though, found details in the lawsuit troubling.

“It sounds as though in many of the allegations, Dr. Luketich had simultaneous operations ongoing and that he would do the critical part of the operation in one room. And they may be ready to perform the critical part [of another surgery] in another room, but because he’s in the adjacent room, they have to wait,” he said.

Even if they tried to arrange it so the critical parts of both surgeries were at different times, “the timing would just always have to work out so perfectly,” Dr. Hanto said.

“So, even if he’s doing the critical part in both cases, in fact, if these allegations are true, then he is really in violation of that prohibition on concurrent surgeries. It would be a violation of ethical principles and also a violation of Medicare’s conditions of payment,” he said. “If that is true, it certainly is a problem for him and for UPMC.”

Sean D. Hamill: or 412-263-2579 or Twitter: @SeanDHamill

First Published October 10, 2021, 12:00am

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