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Where a Defendant takes an “interlocutory” appeal on the basis of Peer Review Privilege, the appeal will be quashed unless the asserted Privilege is real - Cullen vs. UPMC

CASE: Cullen v. UPMC REFERENCE: PA Superior Ct. per curium order CASE LOCATION: Allegheny Co., PA.

The allegations in the Cullen case centered around contraindicated liver transplants performed by the UPMC transplant program.

Our clients are brothers. One had a liver disease and was in need of a liver transplant, however not a dire need. He was on a list to receive a cadaver liver. The other was willing to contribute his liver to his brother so the brothers explored the possibility of a live liver donor transplant. They were both evaluated at The University of Nebraska Medical Center to determine whether they were suitable candidates, but the donor was rejected. They were eventually told that UPMC might accept them for a live liver transplant. Ultimately, they were accepted as candidates for surgery at UPMC. They underwent the surgery and both now have life-long severe complications and injuries.

Unbeknownst to the brothers, UPMC had adopted new guidelines for potential surgical candidates of the live liver donor transplant program. These new guidelines were devised by UPMC and Dr. Amadeo Marcos. The new guidelines were far more aggressive than those previously used by UPMC or any other transplant program in the country. By adopting these new guidelines, UPMC anticipated that it would reap millions of dollars (each transplant surgery generated approximately $500, 000) and reestablish its program’s prestige in a market that had become more and more competitive among the institutions that offered liver transplants. Also unbeknownst to the brothers, the new UPMC guidelines placed the surgical participants at far greater risk for serious complications than any program had before. Patients who ultimately submitted to the program were not made aware that the new guidelines made obsolete the complication rates that patients were provided.

Also unbeknownst to the brothers, Dr. Thomas Starzl, the dean of UPMC’s liver transplant program and former director of that program, was critical of UPMC’s new aggressive approach to increasing the number of live liver donor transplants; and Dr. Starzl himself attempted to publish complication rates of live liver donor transplant surgery in The New England Journal of Medicine. UPMC attempted to block the dissemination of Dr. Starzl’s findings and his publication in The New England Journal of Medicine. Incredibly, during this timeframe, UPMC did not permit Dr. Starzl into the UPMC building named for him.