Hearing ends on recorded conversation in medical malpractice case

Testimony in a hearing in Allegheny County Common Pleas Court over whether a secretly recorded conversation between famed UPMC surgeon James Luketich, M.D., and the man who prescribed him the drug suboxone will become part of a malpractice case finally ended Thursday, with a verdict two months away.

But testimony in the case came to a tense and emotional end Thursday, the third day of hearings this week after three prior days in August, after Judge Philip Ignelzi and one of the lead civil lawyers in the case, Thomas Duffy of Philadelphia, got into a shouting match. Ignelzi threatened to throw Duffy in jail — the second time he has threatened to throw a lawyer in jail during these hearings.

The dispute began when Ignelzi told Duffy that discovery in the related malpractice case — involving a botched lung transplant for plaintiff Bernadette Fedorka of Aliquippa — was delayed by the hearing over the tape because Duffy and his co-counsel decided “to name someone who had nothing to do with the surgery.”

In addition to naming in the malpractice case UPMC; University of Pittsburgh Physicians; the lead transplant surgeon, Pablo Sanchez, M.D.; and two other doctors involved in Fedorka’s treatment, Duffy and his co-counsel, Patrick Loughren, named Luketich, who is head of the cardiothoracic department, even though he was not directly involved in the surgery.

The malpractice lawsuit, filed in December 2018, accused Luketich of making a series of poor management decisions that led to Fedorka’s botched surgery, in part because Luketich was allegedly impaired from using suboxone — a claim that UPMC and Luketich vigorously deny.

More than three years later, though, Luketich filed a third-party counter lawsuit against the Fedorkas and two former UPMC surgeons — Jonathan D’Cunha and Lara Schaheen. In it, he alleges that he was defamed by the suboxone accusations that he believes came from the secretly recorded conversation. Luketich believes it was D’Cunha and Schaheen who made the recording.

“You chose what you wanted to put in the [malpractice] complaint,” Ignelzi told Duffy on Thursday. “Now, that has consequences to it.”

Duffy was angered by that.

Raising his voice in the crowded courtroom — at least a dozen lawyers, combined, for both sides, and a dozen other legal and UPMC staff fill the small courtroom each day — he walked closer to the judge’s bench and said: “Wrong, your honor! Wrong!”

He noted that Ignelzi also had previously accused the Fedorkas’ attorneys of turning the case “into a ‘Peyton Place’ ” soap opera because of the various salacious and personal accusations between Luketich and D’Cunha and Schaheen that are now inextricably involved in the case.

“We have a corporate liability case,” Duffy said. “The man that they say has nothing to do with this case [Luketich], he set the schedule. He made it so that Sanchez, who had been up since the morning before,” performed the surgery on Fedorka.

“It’s like saying [Russian President Vladimir] Putin hasn’t fired a shot” in the war in Ukraine, Duffy said. “He set the schedule.”

“Our case has merit. If it didn’t, do you think [Luketich and UPMC] would have 20 lawyers in here?” Duffy asked, exaggerating a bit on the number of lawyers.

The case has even broader implications, Duffy said: “UPMC put profits over patients. UPMC put in progress to put a plan to get their lung [transplant] counts up. UPMC called in Mrs. Fedorka to do a lung transplant” as part of that plan.

Eventually, though, Ignelzi had had it and shouted in a booming voice: “You’re gonna stop right now! I’ve shown everyone in this case a courtesy! You’re not gonna lecture me! You’re gonna stop right now or you’re gonna be in jail!”

Eventually, Duffy and Ignelzi apologized to each other, with Duffy saying that it had been an emotional day because his client, Fedorka, had to be admitted to the hospital on Thursday, and he was getting texts from her husband, Paul, about her condition.

Before that, though, there was a surprising revelation by an unexpected source who was not even expected to testify.

One of D’Cunha’s attorneys, Scott Livingston, on Wednesday asked UPMC to provide someone who could explain the operation of cameras that were located in the observation room where the secretly recorded conversation between Luketich and David Wilson, M.D., who prescribed Luketich the suboxone, took place.

Anita Soltez, who was UPMC Presbyterian’s operating room director when the February 2018 conversation was secretly recorded, was brought in to court to explain that.

But when Livingston said he did not need to hear from her, Ignelzi was about to send her home until Luketich’s attorney, Efrem Grail, said he had some questions.

Under Grail’s questioning, Soltez, who is now a senior clinician at the hospital after voluntarily leaving her job as operating room director, said that the cameras in the observation room no longer function and were not working in 2018, either.

Livingston, then, said he would like to ask some questions and eventually got around to asking her whether someone could hear what was being said by people talking in a normal voice while they were in the hallway outside the observation room when both doors to that room were closed.

Soltez said that when the doors are shut “you should not be able to hear anything in the hallway.”

That is important to the case because Luketich and UPMC believe strongly that Schaheen, maybe with D’Cunha, secretly recorded Luketich and Wilson’s conversation, which included a discussion of Luketich’s suboxone prescription.

Schaheen and D’Cunha have said they heard the same conversation, but only because one of the doors to the small room was propped open. Luketich and Wilson said that both doors were closed.

If the doors were closed, that would mean either someone had left a recording device in the room that clearly captured both men’s voices, or perhaps someone recorded it from outside the room.

But Soltez said that in recent months a group of lawyers came into the operating room area and tested whether they could hear anyone’s conversation inside the observation room with both doors closed.

She said she was with them, “and I couldn’t hear” anyone talking inside the room.

With no more witnesses to present, Ignelzi gave both sides until Feb. 10 to present findings of fact and conclusions of law to him that he can review before he makes a decision on whether the secretly recorded conversation will be allowed to become part of the case, and if Luketich is entitled to any damages for defamation from the recording as an illegal wiretapping.