For surgeon Jonathan D'Cunha, a rising star in Minnesota medical circles and a specialist in treating lung disease, his move to UPMC a decade ago allowed him to join one of the most esteemed transplant centers in the nation.
His new boss, James Luketich, was in many ways a darling of the hospital system.
As the renowned head of the cardiothoracic surgery department, Dr. Luketich had become one of the top earners on the nonprofit juggernaut’s payroll, overseeing a UPMC transplant division that was carrying out scores of procedures a year.
But while their careers both seemed to be shining brightly, their paths would end up colliding.
While working in the lung transplant program, Dr. D'Cunha said he became alarmed over the number of complex surgeries his boss was carrying out at the same time – leaving some patients severely injured – while Dr. Luketich, in turn, accused his colleague of carrying on an affair with another doctor, research misconduct, and mounting a campaign against him.
Three years ago, Dr. D'Cunha made a move that would threaten one of the most respected hospital systems in the country.
The 54-year-old doctor filed a federal complaint that triggered a Justice Department investigation and has now turned into one of the largest scandals to unfold at UPMC in a generation, calling into question not only the ethics of Dr. Luketich but the leadership of the institution.
The surgeon and UPMC are under a dual legal attack – accused in a complaint by federal prosecutors of committing grave systemic fraud and putting profits before patients, and of negligence in a state malpractice case alleging a botched lung transplant by a department that Dr. Luketich oversees.
Drama unfolds
What’s more, the lawsuits go beyond dry recitations of obscure Medicare rules and provide a rare glimpse into strife and turmoil in the halls of Pennsylvania’s largest private employer and an intense legal battle between two star surgeons.
Dr. Luketich’s backers spare no praise. His lawyers have called him a “world-class cardiothoracic surgeon and professor to whom other hospitals and physicians refer their most difficult cases because of his high rate of successfully carrying out challenging, complex surgical procedures.”
Paul Wood, a UPMC spokesman, called Dr. Luketich a “uniquely skilled” practitioner who leads teams through lengthy and complex procedures – frequently as long as 12 hours – on some of the hospital’s most challenging cases.
Dr. Luketich’s critics – including federal prosecutors – call him a “rogue surgeon” who endangered his patients and ran his practice by his own rules, resisting attempts by his superiors to rein him in.
During the state court hearing in June, Dr. D'Cunha’s attorney criticized the surgeon for what he called “aberrant, erratic behavior” while federal prosecutors claimed he would walk out of the operating suite for extended periods and leave patients unnecessarily anesthetized for hours on the operating tables.
Prosecutors blamed Dr. Luketich’s surgical practices for causing serious harm to some patients, including pressure ulcers, deep tissue injuries, skin grafts, cases of compartment syndrome and at least two amputations, portions of a hand in one case, and a lower leg in the other.
Dr. D'Cunha, now in charge of his own cardiothoracic department at the Mayo Clinic in Phoenix, has emerged as a key figure in both courtroom battles as the two men clash over deeply personal issues that could impact the future of their careers.
For two years, the Justice Department carried out its own investigation by scrutinizing Dr. Luketich’s billing practices and medical records among others before suing him and UPMC last year for violations of the False Claims Act.
“Doctors take an oath to uphold the highest levels of ethical standards and care,” Mike Nordwall, the FBI special agent in charge of the Pittsburgh office, said in September when the complaint was unveiled. “The allegations set forth today violate those ethics, painting a picture of fraud and deception.”
UPMC and Dr. Luketch, 68, have vehemently denied the allegations in both cases and blame Dr. D’Cunha for sparking the “baseless” malpractice case with what his lawyers called “false and defamatory allegations” – namely, that drug use by Dr. Luketich had led the surgeon to make questionable staffing decisions affecting the lung transplant program.
From Dr. Luketich’s viewpoint, the lawsuits are the result of what one of his attorneys called a “vicious vendetta” and a “long-standing conspiracy” by Dr. D’Cunha and a former surgical resident, Lara Schaheen.
Efrem Grail, a lawyer representing Dr. Luketich in the state malpractice case, said his client has long tried to understand why he was sued by a woman “he never met and in whose medical care he never had any role whatsoever.”
Asked by the Pittsburgh Post-Gazette for comment on the specific accusations, Mr. Grail did not address the claims in detail but instead reiterated in an email his position that the allegations by Dr. D’Cunha were “outrageous and defamatory.”
‘High stakes’ battles
The stakes surrounding the litigation are high for UPMC and its star surgeon: potentially millions of dollars in damages, shredded reputations and an erosion of public trust.
Federal prosecutors depict a fraught environment in which UPMC officials were alerted years ago to the problems raised by the whistleblower and repeatedly implored Dr. Luketich to follow the rules – and chastised him, to no avail, when he ignored them, the federal case alleges.
Meanwhile, the state case includes allegations that describe problems unfolding between the two doctors that led up to the federal complaint, including back-and-forth accusations about a workplace affair, drug addiction, illegal wiretapping, surveillance, and backstabbing.
While UPMC has long advanced an image as a bastion of Pittsburgh’s eds-and-meds economy, both legal complaints allege a hotbed of discontent in one of its most prestigious units and what they call a high-profile, profit-driven surgical department -- one in which some doctors didn’t trust their supervisor, and their supervisor viewed some of them as enemies.
All the while, lawyers for UPMC and Dr. Luketich have tried to tightly control information, fighting to remove from public view certain details of both lawsuits.
In one example, UPMC tried to keep out information that showed the hospital system had raised concerns years earlier about Luketich overbooking surgeries and conducting two or more complicated operations at the same time.
“When he is not there things do not progress,” UPMC’s top clinical officer wrote in a 2016 email to other system executives about the surgeon leaving the operating room to tend to patients in another.
A proposal was made to address the situation by controlling Dr. Luketich’s schedule, but executives were skeptical because “we all know Jim [Luketich] will find work-arounds or simply ignore the rules.”
Prosecutors argued successfully that those concerns should be made public, and the judge agreed.
The federal case is one of only four across the nation focusing on Medicare fraud due to concurrent or overlapping surgeries, according to Reuben Guttman, a Washington lawyer who has litigated two of them.
The risks of such surgeries are well documented: doctors performing procedures on more than one patient at the same time, shuffling between operating rooms and in the worst scenarios, holding up key phases of the operations while they are in another room.
A notable case against the venerable Massachusetts General Hospital led to a $14.6 million settlement payment to the federal government and state of Massachusetts.
Another was filed against Northwell Health Inc. in New York that led to a $12.3 million settlement. And the third involved St. Joseph’s Hospital in Phoenix settling last year for $10 million. Ultimately, the publicity raises the public's awareness in such cases, Mr. Guttman said
“People in Pittsburgh are going to begin to ask their doctor, ‘How many other patients are you operating on when you put me under?’' said Mr. Guttman. "It helps educate the medical consumer.”
Cleaning up ‘the mess’
For Dr. D'Cunha, his own battle began three years after arriving at UPMC when an outside medical investigative team found serious problems with the lung transplants.
Directors of the United Network for Organ Sharing and the Organ Procurement and Transplantation Network said the program repeatedly breached critical protocols by accepting lungs for people and then giving them to others without considering other people who may have ranked higher on the waiting list.
Ultimately, the program was placed on probation – a rare and dramatic step.
During a key court hearing in the state malpractice case in June, Robert Barnes, a lawyer for Dr. D'Cunha, said that prior to the actions against the transplant program, his client “warned Luketich on several occasions that the sheer volume of transplants and the conduct by which that was occurring was going to result in trouble for the department,” according to a court filing.
When the disciplinary action took place, Dr. D’Cunha was tasked to “clean up the mess” by being put in charge, according to Mr. Barnes.
And while UPMC said the errors were due to a misunderstanding, Dr. D'Cunha said the investigation reflected a deeper problem that bothered him as well as another physician, Dr. Schaheen, a resident who spent six years operating alongside Dr. Luketich.
At the June hearing, Mr. Barnes told Allegheny County Common Pleas Judge Philip A. Ignelzi that Dr. Schaheen “saw aberrant erratic behavior" in Dr. Luketich and that it "concerned her so much that she brought it to the attention of her supervisor, Dr. D'Cunha.”
Dr. D’Cunha, according to Mr. Barnes, had been receiving other complaints – from anesthesiologists, nurses and staff – “that something is wrong with Dr. Luketich, he's on drugs, he's falling asleep during surgeries, he's gone from surgeries, he's performing multiple surgeries and leaving one room and leaving patients laying on a table for hours and hours.”
When Dr. D'Cunha took the top job running the program in 2016, he had one requirement, his lawyer said: strict compliance with transplant rules no matter what.
But that came with a catch: the number of transplants would drop, he warned, according to his lawyer.
“You are not going to have 90 lung transplants a year, you are going to have a lot fewer because we are not going to take mismatches and we are not going to take patients that shouldn't be the number one recipient.
“They said, fine, fine, just get us off probation,” Mr. Barnes continued in court in June. “So he does that. And what happens? The numbers go down. They get off probation.”
Dr. D'Cunha claimed the lower numbers eventually led to a campaign to oust him from his position by Dr. Luketich and others.
Dr. Luketich’s lawyers on the other hand, say that was not the case: that Dr. Luketich was actually trying to improve its lung transplant program by boosting the number of procedures.
Dr. D’Cunha, they claimed, became “increasingly unhappy,” leading senior management to believe he was “struggling.”
Bizarre twists
In the ensuing years, the drama would take bizarre turns, with anonymous letters sent to Dr. D'Cunha's wife and Dr. Luketich, accusing Dr. D'Cunha and Dr. Schaheen of carrying out a romantic affair, according to lawyers during the June hearing in state court.
UPMC investigated and Dr. Luketich was brought in to address the alleged relationship, said his attorney.
The elder doctor's solution: separate the two surgeons.
In another case, Dr. Luketich’s lawyers said he led an investigation into accusations that Dr. D’Cunha wrongly inserted Dr. Schaheen’s name on a medical paper when the work was done by another person.
He also accused his former colleague of inflating Dr. Schaheen's title to “assistant professor” in department materials, court records state.
In a court filing, Dr. D’Cunha’s lawyer fired back, saying that "alleged academic integrity violations...were corrected immediately once they were brought to his attention" and dismissed Dr. Luketich’s allegations as “baseless” and a “bogus plagiarism complaint.”
The claim, Dr. D’ Cunha’s lawyer said, was orchestrated by Dr. Luketich to retaliate against him and Dr. Schaheen for exposing billing fraud and drug use.
By the end of 2018, the state malpractice case was filed in a legal proceeding that exposed much of the back-room drama that had been playing out, despite efforts by UPMC to keep it quiet.
It all began with a lung transplant that the patient said went badly.
Bernadette Fedorka of Aliquippa suffered from chronic obstructive pulmonary disease and on March 9, 2018, she was summoned to UPMC Presbyterian, where she received a new left lung.
But there were dire complications, including a nearly 4-inch piece of wire left in her neck. Her body rejected her new lung and in time, she underwent at least eight other procedures, court records show.
Mrs. Fedorka and her husband, Paul, sued UPMC, its physicians practice, and several of the surgeons involved in her operation, alleging a host of problems: She didn’t urgently need a new lung; the lung she was given wasn’t a good match; UPMC had once again broke national transplant rules by not giving the lung to someone else more in need; and that the surgeons who procured the lung – injuring it in the process – were less qualified than other doctors who should have been involved.
Though Dr. Luketich was not involved in the surgery, the Fedorkas’ lawyers blamed him for shifting critical resources from the lung transplant program that adversely impacted their client.
Dr. Luketich, they alleged, had purposely understaffed the lung transplant center in order to move practitioners to his own thoracic specialty – at a time when UPMC was pushing to perform more transplants.
That would mean more money for him because of the financial incentives from UPMC, according to the lawsuit.
Part of what was driving Dr. Luketich’s decisions, the lawsuit claims, was “the use of suboxone; the need to rely on other surgeons to carry the load; and the “diminution of his own surgical skills and clinical judgment...”
Dr. Luketich fought back, filing his own claim in the same case against Dr. D'Cunha and Dr. Schaheen, saying they were retaliating against him for calling them out on their alleged affair.
He sued them both for conspiracy, defamation and invasion of privacy among other claims – accusations that the judge has allowed to move forward.
Feds launch probe
Three years ago, Dr. D’Cunha made a bold move.
He filed a whistleblower complaint against UPMC, its physicians practice, and Dr. Luketich, initiating a legal process that gives the federal government the option of taking up his claims.
Kept under seal where no one could see it – not the public or UPMC or Dr. Luketich – the allegations were explosive.
Dr. D’Cunha, for example, said that Dr. Luketich would leave patients “unconscious, paralyzed, intubated and on the ventilator for longer than medically necessary,” systemically billing for what he claimed were unnecessary procedures.
UPMC “looked the other way” when it came to questionable practices by Dr. Luketich, despite “detailed reports to UPMC administration” – all because he brought in millions of dollars each year, Dr. D’Cunha claimed.
What’s more, according to Dr. D’Cunha, his superior’s practices trickled down to other physicians, “creating a culture of placing profits above patient safety” and one where doctors feared retaliation for speaking up.
In most cases, the federal government doesn’t take up whistleblower claims, but in this instance, prosecutors said they had turned up sweeping evidence of fraud, misconduct, and other wrongdoing that went on for years.
Citing case after case, the government alleges that Dr. Luketich "regularly sacrificed patient health in order to increase surgical volume in the CT [Cardiothoracic] Department, to ensure that Luketich – and only Luketich – performs certain portions of surgical procedures, and to maximize profit.”
Prosecutors claimed that Dr. Luketich had repeatedly broken technical rules by regularly booking and performing three surgeries at the same time, attending to “other matters” while knocked-out patients lay motionless for hours; claiming he was with patients during key parts of their procedures when he really wasn’t; and fraudulently billing the government for what amounted to millions of dollars.
UPMC staff and executives knew what Dr. Luketich was doing, prosecutors claimed.
Despite efforts to stop his practices, including a plan to monitor him, the government said he didn’t comply.
Beyond concerns about improper billings, the alleged practices were far more egregious because he put patients in danger, prosecutors said.
“Luketich’s surgical practices also defy the standard of care, abuse patients’ trust, inflate anesthesia time, increase the risk of complications to patients, and – on at least several occasions during the Claims Period – have resulted in serious harm to patients,” the complaint states.
Prosecutors accused UPMC of vigorously promoting Dr. Luketich as a reason for patients – many of whom were elderly, frail and severely ill – to choose the hospital system.
Television ads had been made featuring him and touting his efforts to help patients.
Years of suboxone use
One allegation made by Dr. D’Cunha that the government did not include in its complaint: the impact of Dr. Luketich’s use of suboxone, a drug used to treat chronic pain and opioid addiction.
That accusation would later be dropped by Dr. D’Cunha, but continues to be pushed in the malpractice case.
The issue would not only stir debate over whether he was functioning properly in the operating room, but it would prompt a rift in the courtroom over how the information surfaced in the first place.
Dr. Luketich's lawyer, Mr. Grail, said someone illegally recorded a conversation four years ago in an observation room next to an operating suite at UPMC Presbyterian between Dr. Luketich and a fellow doctor who was his suboxone prescriber, Dr. David Wilson.
The lawyer claims that a tape and purported transcript of the conversation were leaked to various people as part of a smear campaign, and that they helped form the basis of both lawsuits.
Mr. Grail described it as “the culmination of this campaign that Schaheen and D'Cunha have been on to punish Dr. Luketich.”
So far, no one has produced a copy of any tape, verified that a conversation was indeed illegally recorded or corroborated that the transcript was faithful to whatever was said between Dr. Luketich and his prescribing physician.
Dr. D’Cunha claimed that the conversation, in which “Luketich demanded that Wilson write him a prescription for a certain dosage of suboxone,” was overheard through an open door – and piped over a two-way intercom system.
An operation was in progress; “untold numbers” of UPMC faculty and staff heard the conversation about Dr. Luketich’s suboxone use, say Dr. D’Cunha’s lawyers.
At a June hearing, Dr. Luketich removed any doubt about his use of the drug by saying he had been taking suboxone since 2008, but that it was prescribed to him because of the pain that developed in his back from long hours in the operating room.
Dr. Luketich testified that many years earlier, he had been prescribed a painkiller for a shoulder injury while in medical school, and in time, it caused challenges. “I thought that I was developing a problem with prescription medication Demerol,” he said.
In 1987, he began a two-year course of treatment through a state-run physician health program, submitting urine samples for drug testing, undergoing therapy and attending sessions with support groups.
When the treatment plan ended, Dr. Luketich said he volunteered to continue in the program, and started helping other doctors who were grappling with addiction issues.
But two anonymous complaints made about him in 2018 – one to UPMC, the other to the State Board of Medicine – jeopardized his ability to counsel other physicians.
At his request, UPMC sent him to a voluntary five-day, inpatient stay at Caron, an addiction treatment center in Berks County. He was cleared.
“They said the recommendations of the committee are that you return to work immediately,” Dr. Luketich testified in June.
“Okay, any changes in my routine? No. Recommending any urine testing? No, your hair and nail analysis was negative for the past year or more so we think you're clean. I said, okay, I think so, too. So return to work. No restrictions? None. No monitoring? None.”
UPMC conducted its own investigation into allegations that he was impaired by suboxone, and found “they were meritless,” said his lawyer, Mr. Grail.
In addition, Mr. Grail shared a March letter with the Post-Gazette from the state’s Office of General Counsel saying that state regulators closed their investigation into Dr. Luketich without taking action.
Mr. Grail has pushed for the information about the conversation and the alleged recording and transcript that includes talk about his client’s suboxone use to stay hidden.
He has cited provisions of Pennsylvania law governing illegally recorded conversations as the rationale for keeping testimony out of public view.
And in a letter to the Post-Gazette last year when the federal case was unsealed, Mr. Grail denied claims that Dr. Luketich abused or was impaired by prescription drugs as “categorically false.”
In the federal case, the judge has asked both sides to look for a way to settle what could be a long legal battle that continues to cast a shadow over one of Pittsburgh's most venerable institutions.
For Dr. D'Cunha, the case has pitted him against a hospital system, where he spent the better part of a decade.
While UPMC for years has cast Dr. Luketich as one of its most esteemed practitioners, a lawyer for Dr. D’Cunha summed up the situation this way during the hearing:
“So the bigger picture here is one of two skilled surgeons, one who is now at the Mayo Clinic in charge of their lung transplant facility, risking their careers for patient safety to expose a deep-rooted problem.”
Post-Gazette reporters Torsten Ove and Sean D. Hamill contributed to this report.
Jonathan D. Silver: jsilver@post-gazette.com; @jsilverinpgh.
First Published: July 31, 2022, 10:00 a.m.
Updated: August 1, 2022, 1:59 p.m.
