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UPMC agrees to pay $8.5 million to settle whistleblower lawsuit filed by former surgeon

Pittsburgh, PA (February 27, 2023) - UPMC and James Luketich, MD, chair of UPMC’s Department of Cardiothoracic Surgery, and UPMC’s practice group, have agreed to pay the federal government $8.5 million to settle a lawsuit alleging fraud and risk of patient harm.

The lawsuit was filed under the False Claims Act in 2019 by surgeon Jonathan D’Cunha, MD, the current chair of Cardiothoracic Surgery at Mayo Clinic, Arizona, and formerly a cardiothoracic surgeon and vice chair of Cardiothoracic Surgery at UPMC.

The complaint was based on a two-year investigation into allegations that they knowingly submitted hundreds of false claims for payment to Medicare, Medicaid, and other government health programs over the past six years.

The complaint also alleged that Luketich, who regularly performs as many as three complex surgical procedures at the same time, failed to participate in all the “key and critical” portions of his surgeries, and forced patients to endure hours of medically unnecessary anesthesia as he moved between operating rooms and to other patients.

“The regulation here is a billing requirement, but it also protects patient safety, and the billing requirement is that teaching hospitals can’t bill for more than one surgery at a time where the critical portions of the surgery overlap, and basically the regulation says the government won’t pay for the additional surgery if the two of them overlap in that important way,” said Claire Sylvia, Partner at Phillips and Cohen LLP.

Sylia’s firm represented D’Cunha, and she told Channel 11 that they’re pleased with the outcome.

“This is an important settlement in our view, both for the taxpayers but also for patients,” she said.

In addition to the multi-million dollar payment, the defendants also agreed to create and effectuate a “Corrective Action Plan” for Dr. Luketich, and to submit a “year-long, third-party audit” of the doctor’s billings to Medicare.

A news release from the U.S. Attorney’s Office adds “pursuant to the Settlement Agreement, UPMC, in turn, has the ability to request information, guidance, assurance and/or an advisory opinion from the Centers for Medicare and Medicaid Services (CMS) of the Department of Health and Human Services regarding certain Medicare regulations pertaining to the types of surgeries at issue in the case.”

Paul Wood, vice president and CCO of UPMC, released the following statement on behalf of UPMC: “UPMC and its world-renowned cardiothoracic surgeon, Dr. James Luketich, have reached a settlement with the federal government to resolve a False Claims action challenging UPMC’s billing for some of Dr. Luketich’s most complicated, team-based surgical procedures. At issue was compliance with the CMS’s “Teaching Physician Regulation” and related billing guidance as well as with UPMC’s internal surgical policies. Among other terms, the parties agreed that UPMC could seek clarity from CMS regarding how it should bill for such surgeries. 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. UPMC has also reserved the right to challenge the relator’s share of the settlement.”

A statement from Dr. Luketich’s personal attorney, Efrem M. Grail, reads “We’re pleased this settlement puts an end to 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. 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.”

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