Judge orders all parties into mediation in civil suit against surgeon

An Allegheny County judge overseeing a hotly contested civil suit that claims UPMC star surgeon James Luketich’s drug use led to a botched lung transplant has ordered all parties in the nearly 5-year-old case into mediation.

One day after a separate case involving Luketich was settled in federal court for $8.5 million and an agreement by UPMC that it would more closely monitor Luketich’s billing practices, Allegheny County Common Pleas Judge Philip Ignelzi on Tuesday issued his order for mediation to take place April 13 and 14.

In his order, Ignelzi appointed Frederick Thieman — he oversaw the settlement in the federal case that was announced on Monday — “as a co-mediator in light of his knowledge and services in the case” that was just settled, Ignelzi wrote.

Ignelzi’s sudden, unexpected decision to order mediation comes at a curious moment in the county case he is overseeing.

He was about to rule on a countersuit in the case in which Luketich sued two former UPMC surgeons who were his colleagues — Jonathan D’Cunha and Lara Schaheen — accusing them of illegally taping a private conversation he had in 2018 with the physician who prescribes him the drug suboxone, a claim D’Cunha and Schaheen deny.

All parties in that countersuit — Luketich, UPMC, D’Cunha, Schaheen, and the plaintiffs in the original medical malpractice lawsuit, Bernadette and Paul Fedorka — had just filed final briefs to Ignelzi arguing over whether the tape of that conversation was going to be made public and become part of the Fedorkas’ lawsuit.

It was expected Ignelzi would make a ruling on that in the next few weeks, but all of that is stalled now until mediation ends or there is a settlement.

The medical malpractice case was filed in December 2018 by Bernadette and Paul Fedorka of Aliquippa. The lawsuit named not only the surgeons who worked directly on her lung transplant but also Luketich, even though he had no direct role in her case.

The lawsuit alleges that Bernadette Fedorka’s March 9, 2018, botched lung transplant — that nearly led to her death and continues to cause her medical problems five years later — was a result of poor management decisions that Luketich made as the head of the cardiothoracic department, which includes lung transplants.

The Fedorkas allege that it was Luketich’s use of suboxone — a drug commonly given to help people with opioid addiction but that is also used as a painkiller — that led to the series of poor management decisions that eventually led to Bernadette Fedorka’s botched lung transplant.

While Luketich admitted in court hearings in his countersuit that he had an addiction decades ago, he said his current use of suboxone is to help with pain in his back, and it has never impaired his ability as a department supervisor or a surgeon.

In his order Monday, Ignelzi ordered UPMC to pay 50% of Thieman’s expenses, and that the Fedorkas, as well as third-party defendants D’Cunha and Schaheen, split the remaining 50% costs.

Though Ignelzi has struggled for the past year to schedule hearings on days that all of the nearly two dozen attorneys involved in the countersuit case could attend, he ordered that “all parties are required to attend [the mediation] in person.” 

He also specifically requested in his order that UPMC’s general counsel, Thomas McGough, attend or at least be available by phone.

A court staff member said Ignelzi would not take questions from a reporter about the order because he does not talk to the media about cases before him.

Thieman, who was the U.S. attorney for Western Pennsylvania from 1993-97 during the Clinton administration, said in an email that “ as a mediator, I do not discuss matters in which I am involved.”

Though no other attorneys involved in the case would comment about Ignelzi’s order, Tom Duffy, one of the Fedorkas’ lead attorneys said Wednesday of Ignelzi’s order: “We’ll be prepared for it and comply with the judge’s order.”