U.S. sues UPMC and top surgeon, alleges care violations and false billing

The federal government on Thursday filed a civil complaint against UPMC, its longtime head of cardiothoracic surgery and a physicians group, accusing them of knowingly submitting hundreds of false claims to Medicare, failing to follow medical standards for surgery and knowingly putting patients at risk.

The allegations against Dr. James Luketich include that he regularly performed as many as three complex surgical procedures at the same time — having to move between operating rooms and sometimes hospitals — forcing patients to have to endure additional hours of anesthesia and develop complications.

The 47-page complaint alleges at least two of Luketich’s patients had to undergo amputations because of his actions, including one person who lost portions of a hand and one who lost their lower leg.

“The laws prohibiting ‘concurrent surgeries’ are in place for a reason: to protect patients and ensure they receive appropriate and focused medical care,” said Acting U.S. Attorney Stephen R. Kaufman in a statement. “Our office will take decisive action against any medical providers who violate those laws, and risk harm to Medicare and Medicaid beneficiaries.”

Attorney Efrem Grail, who represents Luketich, denied the allegations.

“We absolutely, categorically deny that Dr. Luketich did anything improper, and those patients, I think, would all say they owe their good health, if not their life, to his care,” Grail said.

Paul Wood, a spokesman for UPMC, said Luketich is a “uniquely skilled and world-renowned cardiothoracic surgeon.” As the government conceded in the complaint, Wood continued, his patients include very ill, elderly and frail people who choose UPMC and Luketich because others have turned them down.

“When treating these patients, Dr. Luketich leads teams of highly skilled surgeons and other clinicians through complex procedures that frequently last more than 12 hours,” Wood said. “As the government also concedes, Dr. Luketich always performs the most critical portions of every operation he undertakes.

“No law or regulation prohibits overlapping surgeries or billing for those surgeries, let alone surgeries conducted by teams of surgeons like those led by Dr. Luketich. The government’s claims are, rather, based on a misapplication or misinterpretation of UPMC’s internal policies and CMS guidance, neither of which can support a claim for fraudulent billing. UPMC and Dr. Luketich plan to vigorously defend against the government’s claims.”

The complaint was filed by both the United States and Dr. Jonathan D’Cunha, who is now the chair of cardiothoracic surgery at the Mayo Clinic in Phoenix. D’Cunha was employed by UPMC from 2012 to 2019 and served as the surgical director of lung transplantation. The complaint said he worked closely with Luketich. The lawsuit also names University of Pittsburgh Physicians as a defendant.

It follows on the heels of an initial whistleblower complaint filed by D’Cunha in April 2019 that remained under seal.

The civil action, which could result in fines and damages, alleges “longstanding, knowing and egregious violations of the public trust and patient rights.”

According to the complaint, UPMC ignored Luketich’s practices “for years” and allowed them to continue while protecting him from any meaningful sanctions. Even more, it continued, UPMC’s leadership held him out to the public as a global leader in minimally invasive surgical procedures.

Luketich, 68, is one of UPMC’s highest-paid employees, earning more than $2.4 million annually from 2017 to 2019, the complaint said. He also is one of UPMC’s most active surgeons, performing or assisting on hundreds “and sometimes thousands” of procedures per year, generating tens of millions of dollar in revenue for the hospital system, the government said.

It said that UPMC “regularly sacrificed patient health in order to increase surgical volume.”

Under Medicare rules, at teaching hospitals, which include UPMC, a teaching physician is required to be in the operating room during “critical portions” of the procedure, the complaint said.

They must also be “immediately available” during the entire procedure, which means “not performing another procedure,” the government wrote. Under federal rules, Medicare will not pay for surgeries where the critical portions occur at the same time, or during what is called “concurrent surgery.”

However, the government alleged that to accommodate Luketich, UPMC constructed a “unique surgical ‘suite’” for him at UPMC Presbyterian that includes two interconnected operating rooms.

He regularly schedules two complex surgeries to start at or near the same time “and plans to simultaneously conduct a third surgery scheduled at or around the same time in another Presby operating room.”

The third surgery, the complaint said, might be flagged by UPMC’s schedulers, and then it is typically booked under the name of another attending physician to skirt the rules.

“Luketich then regularly bills all three patients’ insurance providers for his services – usually, as the ‘primary surgeon’ or ‘co-surgeon,’” the complaint said.

The complaint includes six examples, including from Nov. 17, 2015, when Luketich billed for six surgical procedures, including three that overlapped in the morning and two more that overlapped in the late afternoon.

On Sept. 26, 2016, he billed for four that overlapped.

The complaint alleges that Luketich’s behavior results in “hours-long and medically unnecessary delays in each operating room,” which lengthen surgical and anesthesia time — and increase anesthesia billing.

It also can lead to complications, the government said. Several of Luketich’s patients who remained under anesthesia unnecessarily developed compartment syndrome, requiring additional procedures and skin grafts, and others developed pressure ulcers and deep tissue injuries.

According to the complaint, in 2015, Dr. Jonas Johnson, the longtime head of UPMC’s surgical services oversight committee, chastised Luketich in emails for overbooking surgeries, calling his behavior “trouble,” “not good medicine,” and “irresponsible.”

He also reiterated that they violated federal billings standards for Medicare. Then, in March 2016 in response to a U.S. Senate finance committee report, UPMC officials attempted to devise a plan to get Luketich in compliance with concurrent surgery rules, the complaint said. However, the lawsuit continued, he did not follow the plan.

In a July 6, 2016, email, Johnson wrote: “You are incredibly busy. Problems arise when you have patients waiting for you in 2 places at once. This leads to unhappy patients, extended delays and potentially places the occasional patient at risk. This also is wasteful of our limited OR resources.”

He went on to ask Luketich to manage his schedule in a way to reduce “waste and delay.”

The U.S. Attorney’s office wrote in the complaint that Luketich’s practices were well-known to UPMC executives and medical staff — but not his patients.

The complaint is filed under the False Claims Act, which provides whistleblower protections, and allows the government to combat health care fraud, the U.S. Attorney’s office said.

“Doctors take an oath to uphold the highest levels of ethical standards and care,” said FBI Pittsburgh Special Agent in Charge Mike Nordwall. “The allegations set forth today violate those ethics, painting a picture of fraud and deception. The FBI will continue to investigate fraud in our health care system and hold those accountable to face the consequences of their actions.”

The lawsuit includes claims for unjust enrichment and payment by mistake. It seeks three times the actual damages suffered by the United States as a result of the false claims as well as fines and costs associated with the case.

Luketich, who lived in a 35-acre estate in Indiana Township, initially listed the home for sale for $8 million last year. Allegheny County property records show the Fox Hunt Road mansion sold in June for $3.9 million.