UPMC Surgeon to Pay $8.5 Million to End Simultaneous Surgeries Suit

In late February 2023, the University of Pittsburgh Medical Center (UPMC) and one of its surgeons agreed to pay the federal government $8.5 million to resolve claims that the surgeon violated Medicare and Medicaid rules by scheduling simultaneous surgeries. As a result of the settlement, UPMC is also required to create a “corrective action plan” for the surgeon and submit a yearlong third-party audit of the surgeon’s Medicare billing.

The claim stemmed from a suit brought in 2019 by one of the surgeon’s former colleagues. The government intervened in July 2021. According to the federal complaint, the surgeon would allegedly schedule simultaneous surgeries in interconnecting operating suites. He would then perform each of the surgeries in the adjoining rooms, step out to complete a third surgery, and then return to finish the first two. This practice allegedly kept patients sedated for longer than necessary. UPMC was apparently aware of the practice, and even issued a warning to the surgeon, but did not take any additional steps to stop him.

The central issue of the case was whether the above practice violated the Centers for Medicare & Medicaid Services (CMS) Teaching Physician regulation and related billing guidance, which specifies that a surgeon must be present or immediately available for all critical parts of an operation, including the “time out” before the start of a procedure for final checks. As part of the settlement, both parties agreed that UPMC could seek clarity from CMS regarding how to bill for such surgeries. UPMC characterized the issue as one of unclear regulations but agreed to pay the $8.5 million settlement amount in order to avoid further litigation. UPMC did not admit liability, though.  

Going forward, teaching hospitals subject to this CMS regulation should pay close attention to their physicians’ presence in surgery procedure rooms to ensure compliance with CMS requirements and avoid agency penalties.

The case is U.S. ex rel. D’Cunha v. Luketich et al., case number 2:19-cv-00495 in the U.S. District Court for the Western District of Pennsylvania.

If you have any questions regarding the UPMC settlement and what this means going forward, please contact your Quarles attorney or:  

• Edward L. Holloran, III: (317) 399-2892 / ed.holloran@quarles.com
• Madison T. Hartman: (317) 399-2883 / madison.hartman@quarles.com