Tensions boil over in UPMC hearing over secret recording

A court hearing over a secretly recorded conversation between two UPMC physicians on Thursday devolved into shouting and threats to have an attorney jailed before cooler heads prevailed.

Dr. James Luketich, the head of cardiothoracic surgery for UPMC, filed a motion for an injunction to prohibit the use of the recording in a civil suit against him, arguing that the conversation between himself and Dr. David Wilson, who’d been treating him with suboxone following prescription drug use, was privileged between a doctor and patient.

The hearing, which began in the summer, concluded Thursday. Allegheny County Common Pleas Judge Philip A. Ignelzi gave all the parties until Feb. 10 to file additional briefs before he rules.

As Thursday’s proceeding was wrapping up, Thomas Duffy, the attorney representing the original plaintiff in the case, Bernadette Fedorka, asked for the hearing to end with closing arguments instead of more briefs to speed the process along.

“We filed this lawsuit four years ago,” Duffy said.

The comment — implying a delay in the case — struck a nerve with Ignelzi. The judge said that it was Duffy’s decision to include Luketich as a defendant in the lawsuit, causing the delay. Luketich never treated Fedorka.

“That has consequences to it,” the judge said. “A gentleman was named who had nothing to do with the surgery.”

“Wrong, your honor!” Duffy shouted in response. “We have a corporate liability case.”

Duffy said his client was harmed because the surgeon who performed her surgery had been up since the morning before. Luketich set the operating room schedule, and did so to achieve financial incentives, Duffy said.

Among ongoing allegations against Luketich and UPMC are that they overbooked surgeries that required Luketich to be in multiple operating rooms at the same time, compromising patient care.

The secret recording and a transcript of it, which has been placed under seal, are exactly on point to that issue, Duffy said.

“Dr. Luketich was an impaired physician. Dr. Luketich set the schedule. Our case has merit,” Duffy continued, his face purple as he shouted. “If it didn’t, do you think they would need 30 attorneys?”

Duffy went on to tell Ignelzi that Fedorka’s husband continues to take her to dialysis and is attempting to get her into the Cleveland Clinic for treatment. She has end-stage renal failure and has been suffering for four years, he said.

“I take offense at you indicating that somehow I’ve done something improper,” Duffy said.

“We have a corporate liability case against UPMC. UPMC put profits over patients,” the attorney added.

“You’re going to stop right now!” Ignelzi shouted as he slammed the bench twice. “I’ve given my time and my effort. You’re not going to lecture me. You’re going to stop right now, or you’re going to be in jail.”

Ignelzi added that he had “never, ever, ever seen somebody act like that in a courtroom, and it’s despicable. I’ve never seen a lawyer act like that, and I’m offended.”

At that point, tempers cooled and the parties resumed discussing filing deadlines and other motions.

As the hearing concluded, Ignelzi apologized to the parties for losing his temper.

“I apologize, too,” Duffy said. “I didn’t mean to raise my voice. I apologize to the court. It’s an emotional case.”

“Mr. Duffy, I accept your apology,” Ignelzi replied.

The parties have been fighting over the admissibility of the recording for months. Attorneys for Luketich and UPMC argue that it is a violation of Pennsylvania’s wiretap laws, which require two-party consent, and that any dissemination of it is also a violation.

Fedorka’s attorneys, as well as those representing the two doctors who Luketich and UPMC accuse of making the recording, Jonathan D’Cunha and Lara Schaheen, argue that the room where the recording was made is a common area of the hospital with no expectation of privacy.

The recording was made in G212, an observation room adjacent to an operating room at UPMC Presbyterian.

It can be accessed via a swipe key card or a punch code.

Earlier on Thursday, Anita Soltez, who served as the director of the operating room at the time the recording was made, testified that many employees had access to the room. She called the number “vast.”

On Wednesday, D’Cunha’s attorneys had said that they expected him to testify on Thursday. But they rested their case without calling him. Dr. Schaheen also did not testify.

Luketich has accused the two of conspiring against him and reporting his suboxone use in retaliation after he confronted the two about an improper relationship and allegations of academic misconduct.

Both D’Cunha and Schaheen have since left UPMC and are now practicing in Arizona.