Federal judge dismisses wrongful termination case against University of Pittsburgh

A federal judge on Wednesday threw out a retaliation lawsuit filed by a former researcher at the University of Pittsburgh against her employer, saying that she failed to prove that it was protected conduct that led to her termination.

Diana Zaldonis, who worked in UPMC’s Cardiothoracic Transplantation division, filed the complaint in September 2019, alleging violations of the federal False Claims Act, False Statements, retaliation and wrongful termination.

She alleged that several cardiothoracic surgeons, including Dr. Pablo Sanchez and Dr. James Luketich, were passing off their responsibility of obtaining patient consent for medical procedures to other personnel, including residents, fellows, physician assistants and nurse practitioners — in violation of federal and state law, as well as UPMC policy.

Luketich has also been named in another whistleblower lawsuit accusing him and UPMC of knowingly submitting hundreds of false claims to Medicare, failing to follow medical standards for surgery and knowingly putting patients at risk.

In Zaldonis’ complaint, she alleged that physicians in her department would submit bills to Medicare and Medicaid for payment even though they didn’t meet the federal regulations because there was not properly obtained patient consent.

Zaldonis, who had worked in clinical research since 1982, said she learned about the violation of informed consent protocol in September 2018 and went to the university’s Institutional Review Board to report it.

A month later, the lawsuit alleged that Sanchez informed Zaldonis’ supervisor that he had issues with her performance.

She was terminated on Jan. 8, 2019.

Zaldonis’ initial complaint was filed under seal as the U.S. government contemplated whether to intervene in the case with Zaldonis acting as a whistleblower.

When the government declined to intervene in June 2020, the initial complaint was unsealed.

The opinion issued on Wednesday by U.S. District Judge Christy Criswell Wiegand followed another from May 2021 in which she granted a motion by UPMC and University of Pittsburgh Physicians to dismiss two other claims.

Her opinion on Wednesday addressed the two remaining counts: wrongful termination and retaliation.

On both, Wiegand found that Zaldonis failed to support her claims.

Regarding her retaliation allegation, the court said Zaldonis was required to show that she was engaged in protected conduct under the False Claims Act, and that she was discriminated against because of that conduct.

However, attorneys for the University of Pittsburgh argued that Zaldonis’ conduct was not protected because the complaint she filed with the IRB would not have resulted in a viable False Claims Act action.

The judge agreed, saying that the conduct reported by Zaldonis was only a regulatory violation.

“Because the report at issue accused the hospital of nothing more than a failure to comply with [Medicare and Medicaid] regulations, she did not engage in protected conduct in furtherance of the [False Claims Act],” the judge wrote.

As for the wrongful termination claim, Zaldonis argued that she was fired for refusing to commit a crime.

However, Wiegand wrote that Zaldonis faced no criminal charges relating to a consent form that had already been executed and whose execution was the responsibility of the physician.

“Accordingly, her argument that she would have committed a crime had she not reported the lack of informed consent is unpersuasive,” Wiegand wrote.