UPMC whistleblower lawsuit can proceed, appellate court reaffirms

December 27, 2019

An appellate court backed reinstatement of a whistleblower lawsuit against UPMC and about a dozen of its neurosurgeons, which was thrown out of court in 2018.

 

The Third Circuit Court of Appeals upheld reinstatement of the lawsuit, which was filed in 2012 by three former UPMC employees and later dismissed by U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon. In September, a three-judge panel of the appellate court ruled that the case had merit and ordered reinstatement, which UPMC appealed for a second review.

 

The whistleblowers — Anna Mitina and physicians J. William Bookwalter and Robert J. Sclabassi — allege that starting in 2006, UPMC neurosurgeons inflated the number of spine operations they did while performing needlessly complex medical procedures to beef up their earnings, which resulted in increased patient referrals to UPMC hospitals. The three-count civil lawsuit against UPMC and its neurosurgeons alleged violations of False Claims and anti-kickback laws.

 

The arrangement benefited both surgeons and the medical center, according to the lawsuit. In 2009, UPMC had the single highest grossing neurosurgical department in the U.S., with Medicare charges alone totaling $58.6 million. And in some years, annual neurosurgeon salaries ranged up to $4 million.

 

“Fraud can be profitable,” Third Circuit Court of Appeals Judge Stephanos Bibas wrote in the court’s Dec. 20 opinion. “And here it allegedly was. With these practices, the surgeons racked up lots of work units and made lots of money.”

 

UPMC has countered by saying that paying doctors for their productivity is standard practice among hospitals nationwide. Moreover, the high salaries were due to physician skill and demand in the marketplace.

 

Neither UPMC lawyer Stephen A. Loney, partner at the Philadelphia firm of Hogan Lovells, nor whistleblower counsel Andrew M. Stone, principal at Downtown-based Stone Law Firm, were available Thursday.

 

Joining UPMC with amicus briefs in support of reconsideration of the reinstatement ruling was the American Hospital Association, Hospital and Healthsystem Association of Pennsylvania and three other hospital groups. The ruling means the case will likely move to the discovery phase.

 

Kris B. Mamula: kmamula@post-gazette.com or 412-263-1699

First Published December 27, 2019, 8:00am

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By Kris B. Mamula / Pittsburgh Post-Gazette

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