Judge in UPMC case unseals recording

After a yearlong, high-stakes legal battle, an Allegheny County judge on Wednesday unsealed a secret recording of a star UPMC surgeon who was at the center of a sweeping federal investigation into questionable surgical practices and allegations that he was billing the government for millions.

In a ruling peppered with criticism of witnesses and their lawyers, Judge Philip A. Ignelzi agreed to release a controversial transcript of a private conversation between Dr. James Luketich and another doctor in which the two talked about the surgeon’s prescription drug use and hospital leadership’s push to boost revenues by increasing the number of lucrative surgeries.

Dr. Luketich, who until recently was chair of UPMC’s prominent Department of Cardiothoracic Surgery, argued that the recording was illegally made five years ago when he met with pulmonologist David Wilson in a room inside UPMC’s flagship hospital.

In his ruling, Judge Ignelzi, citing Shakespeare’s “Hamlet” and the soap opera “General Hospital,” said the two men had “no reasonable expectation of privacy” when they met in the frequently used surgical observation room five years ago and that what they said can be used in a high-profile medical malpractice case now unfolding in his court.

The judge’s decision comes two months after the Post-Gazette obtained a copy of the transcript and published details of the talk between the two longtime doctors, revealing for the first time an exchange that had been off-limits to the public for years.

“Applicable idioms abound: ‘the genie is out of the bottle,’ ‘the horse is out of the barn,’ ‘the milk has been spilt,’ ‘the cat is out of the bag,’ ‘the dirty laundry has been aired,’ and one ‘can’t unring the bell,’ ” Judge Ignelzi wrote.

The meeting at the heart of the dispute took place on Feb. 26, 2018, in UPMC Presbyterian Hospital in Oakland. Dr. Luketich had texted Dr. Wilson that morning, writing, “If you can, I need a scrip and would like to talk about staff.”

The conversation that followed shed light on the internal politics of UPMC’s renowned transplant center, including disparaging comments about a Black surgical resident and accusations that then CEO Jeffrey Romoff was pushing to increase the number of transplants to generate greater revenues.

Last month, Dr. Luketich stepped down as department chairman — weeks after the Post-Gazette’s story — but continues as a surgeon and researcher.

Dr. Luketich’s lawyer, Efrem Grail, did not respond to questions about whether he would appeal the ruling.

The judge’s decision also opens up hundreds of pages of court documents from a medical malpractice case that had been dominated for months by the fight over the conversation.

Though lawyers for Dr. Luketich had argued the conversation was illegally recorded under the state wiretap law and should be sealed from the public, the judge said the two doctors had gathered in a room that was open to others at the hospital and that the back door had been open “in some manner.”

Since last year, the 11-minute tape has been at the center of a malpractice case in which a 64-year-old Aliquippa woman and her husband are suing UPMC and other doctors for what they allege was a botched lung transplant in 2018.

Though Dr. Luketich did not perform the surgery, Bernadette and Paul Fedorka allege that his suboxone use impaired his judgment and led him to make decisions that drained the department of key resources and contributed to the poor outcome.

While lawyers for the Fedorkas have pushed to use the tape and transcript as evidence of their claims, the details of what the two veteran doctors discussed went far beyond the scope of the lawsuit and triggered an intense effort from UPMC and Dr. Luketich to keep it sealed.

At times, testimony turned to clashes between doctors at UPMC and the nationally known thoracic surgery unit — and arguments over who secretly recorded the conversation.

In court filings, Dr. Luketich blamed two former subordinates who he claimed had targeted him in a vendetta.

Though Dr. Jonathan D’Cunha and Dr. Lara Schaheen denied making the tape or sending it to other colleagues, the judge on Wednesday weighed into the controversy, saying there was ample reason to believe that they were behind the recording.

“Not only are Drs. Schaheen and D’Cunha’s fingerprints on the interception of the communication, these fingerprints are on the disclosure of the tape and transcript,” Judge Ignelzi wrote.

The judge also cited much of the infighting at the institution, saying that what was playing out behind the scenes resembles a soap opera.

Dr. D’Cunha had filed a federal whistleblower case against Dr. Luketich and UPMC, accusing the surgeon of carrying out multiple operations at the same time, while Dr. Luketich said his onetime subordinate of retaliating for exposing an affair between Dr. D’Cunha and Dr. Schaheen.

“The Court notes this case could easily be mistaken for a script from the sixty-year current long-running television melodrama, General Hospital,” he wrote.

Robert Barnes, an attorney for Dr. D’Cunha, said his client stands by his testimony that he didn’t record anything. “Our view is that these claims were frivolous all along.”

For his part, Dr. Luketich’s lawyer, Mr. Grail, said the surgeon was pleased that the judge singled out the two doctors to “not be credible in light of their exclusive motive, opportunity, admission of aural eavesdropping, and prior conduct.’”

Dr. Shaheen’s lawyer declined to comment.

The judge also took aim at Dr. Luketich, casting doubt on the surgeon’s explanations about controversial comments he made about Dr. Schaheen.

During the tape-recorded conversation, Dr. Luketich talked about hiring certain doctors, including Dr. Shaheen, who was then a surgical trainee.

“Well all I know is that I think there are a number of people that could have tapped into that if they wanted to, me included,” Dr. Luketich said, before saying he and his wife had a good relationship and “I’m just not interested in [Dr. Schaheen].”

Under questioning during a portion of the court case that had been sealed until Wednesday, Dr. Luketich denied he was making a sexual reference to Dr. Shaheen. Rather, he testified, by “tapped” he meant hiring her as a surgeon.

The judge was skeptical. “This Court finds Dr. Luketich’s explanation of his use of the word ‘tap’ to not be credible when a reasonable explanation of the use of ‘tap’ in common parlance is a slang idiom for the sexual desire of another. This was abundantly clear to the Court at the time.”

Not only did the judge have harsh words for the doctors, he criticized their lawyers who have taken part in the malpractice case. Calling the proceedings “a scintillating saga of operatic proportion,” Judge Ignelzi accused the attorneys of “seeking to play their roles not just for the court — but to the media.”

In one footnote, he invoked one of the many times he cleared the media and public from the courtroom when testimony turned to the transcript, which was still under seal.

“What is aggravating me, counsel, is you are playing to the fact that there is media here and you just want to throw this man under the bus,” said the judge, referring to Dr. Luketich.

The lone people to be spared in the judge’s ruling was the couple who initiated the malpractice case: the Fedorkas.

“The only party whose credibility remains intact are that of the Plaintiffs Bernadette and Paul Fedorka, husband and wife,” Judge Ignelzi wrote.

Allowing the transcript and recording to remain secret would potentially deprive the couple of key evidence in their case, he said.

“Granting the injunction would harm the only innocent party in this case, the Fedorkas.”

Mike Wereschagin: mwereschagin@post-gazette.com; Twitter:@Wrschgn