THE BURLINGTON FREE PRESS

By Stephen Kiernan

Free Press Staff Writer

Sunday, December 9, 2001

(First in a four-part series)

One spring day in 1981, Lois Tarczewski, the manager of a Windsor gift shop, slipped on a wet floor and banged her elbow hard against a door frame.

She broke no bones, but she ached. At a family reunion that summer, she was still sore. Her fingers tingled, too.

She went to see Dr. C. Frederick Lord of Windsor. So began a tragic medical odyssey.

Her pain persisted despite years of treatments. In 1989, Lord recommended surgery on her spine. Tarczewski consented.

Something went wrong during Tarczewski's operation. Before the anesthesia wore off, she had lost control of her arms and legs. She later regained partial use of her limbs. But for the next decade she was unable to work, tethered to an oxygen tank and living with a nerve condition that made the slightest touch of her skin feel like fire.

Tarczewski did not know that her doctor had performed that type of surgery only once before. She was unaware that her doctor had been sued for malpractice twice, paying a settlement in one case and losing a jury verdict in the other.

Had she known, her husband said, she would have gone elsewhere.

Lawsuit plaintiffs and state regulators allege Lord committed medical errors on at least 12 patients in addition to Tarczewski, ranging from operations on the wrong body part to prescription mistakes to surgical complications that resulted in death.

Like Tarczewski, these people were unaware of Lord's history. They did not know that for a time Lord had a drug problem. They also did not know whether hospitals that employed him took any action based on problems with their care.

They did not know because no Vermonter can know these things about a doctor. Confidentiality surrounds physicians on all sides.

Doctors rarely, if ever, file complaints against peers. Hospital reviews of doctors are confidential. Insurers, when they investigate doctors' performance, do not release the results to the public. Courts routinely seal settlements of malpractice suits.

The public watchdog agency that regulates doctors -- the Vermont Board of Medical Practice -- operates with confidentiality rules unequaled in state government.

Vermonters can learn about a doctor's past only by searching court records and interviewing former patients -- a task few medical consumers have the time, money or inclination to pursue. Many other states make more physician information available, at far less effort.

Tarczewski's husband, Richard, calls it a "code of silence." Medical professionals admit consumers can find out more about a plumber or an automobile than they can about a physician.

Last Dec. 6, Lois Tarczewski died after more than a decade of suffering.

That day, the medical board concluded a three-year investigation of Lord, reaching an agreement with him to curtail his practice. Lord denies the state's charges but he accepted limits on his work. He still practices medicine at Mount Ascutney Hospital.

The visit

Tarczewski was 35 when she banged her arm. Her life had little room for the chronic pain that ensued. A scrupulously strict mother of three, she held modest jobs, sometimes two at a time. Her hobbies -- macrame, making gingerbread houses complete with lights  -- all involved working with her hands.

She received painful cortisone injections. She had surgery on her elbow. Her husband said nothing worked.

The chronology of what happened next comes from depositions of Lord and Tarczewski taken as a result of her 1991 lawsuit against him:

Lord said that by the fall of 1989 he suspected Lois had radiculopathy: pain in one body part that indicates a problem at the nerve's root in the spine. Because Mount Ascutney Hospital lacked the equipment to confirm the diagnosis, Lord sent her to a Brattleboro neurologist.

After tests, that doctor tentatively seconded Lord's conclusion. The neurologist then directed Tarczewski to a surgeon at Dartmouth-Hitchcock Medical Center and an operation was scheduled for January: Her seventh cervical vertebra would be removed, relieving the spinal pressure.

The Brattleboro doctor sent Lord an update. Lord wrote back the next day: "In the future, if one of my patients has been referred to you for help with a diagnostic problem ... I would be very grateful to have the patient referred back to me."

Lord said in his deposition that he was "disappointed" that his patient had been sent to another doctor. He mailed a copy of his letter to Tarczewski.

"I was very intimidated by the letter," she said in her deposition. She also said Lord repeatedly said he was qualified to perform the procedure himself.

The basis for that claim? A 1978 graduate of the University of Vermont Medical College in Burlington, Lord had spent seven years in residencies for general surgery, orthopedics and bone cancer. He trained in Yale-affiliated hospitals, at Brown University, and at Massachusetts General Hospital. He published five papers in medical periodicals. He was a board-certified member of the American Academy of Orthopaedic Surgeons. He was a fellow of the American College of Surgeons.

Tarczewski went to Lord's office Dec. 11, 1989, to discuss the operation. He used a model of the spine to demonstrate and described the risks, such as infection.

Tarczewski agreed to proceed. Her deposition indicates uncertainty, though: "I walked outside the door of his office. And I stood there and I said, 'I have no idea what this man just said to me.'"

She went back and asked him to explain everything again.

"I felt bad," Lois said in her deposition, "because I felt I did start with Dr. Lord. ... And Dr. Lord reassured me, there in his office, that he was more than capable of doing this type of surgery ... and would I like him to do it?

"So there I sat in his office, knowing I had the appointment at Hitchcock ... and feeling, 'Oh God, what do I do now?' And I felt, well, Ascutney hospital is closer to home. Dr. Lord assures me he is capable of doing this. ... I might as well stay here and get it done."

Lord said, when deposed two years later, he had performed surgery like the one planned for Tarczewski only once before.

Unknown information

Dr. John Brumsted, chief medical officer at Fletcher Allen Health Care, while declining to comment directly on the Tarczewski case, explained this kind of situation: "People are vulnerable when they seek medical care. That translates into an added responsibility to provide the highest quality care, because they can't do the kind of normal background checking they would do to buy a car."

To check Lord's background Tarczewski would have had to visit courthouses in at least three states.

That search would uncover the lawsuit during Lord's 1980-1984 residency in Rhode Island. Lord testified in 1991 that he was on call when Seth Mangarsian died of a massive heart attack five days after hip surgery.

While clerks in Rhode Island's superior and district courts were unable to locate records of the suit, Lord testified that the case was settled. A spokeswoman at the law offices of Stephen Famiglietti, who represented Mangasarian, said a cash payment was part of the settlement.

In Vermont in 1986, Lord treated the broken leg of Adam Lockwood, a Windsor 11-year-old with cerebral palsy. State Supreme Court records show that when the cast was removed, the boy's leg was turned sideways. He was unable to walk and required two reparative surgeries. His parents sued Lord for medical malpractice. Court records say a jury awarded the family $250,000.

Tarczewski did not know about these cases. Nor did the patients who followed. While court records are public information in Vermont, they are spread out in various county courthouses, or stored in the state's warehouse of documents older than a few years.

The surgery

Tarczewski's operation took place Dec. 21, 1989. Anesthesia began at 8 a.m.

For surgery on the seventh cervical vertebra, the incision is in front, in the throat. That entry requires setting aside the larynx, the carotid artery and more.

Lord described what happened in his 1991 deposition in the Tarczewski suit:

He used a No. 15 blade, a small one, on a No. 7 handle, a long one, to open a rectangular working area. Then he started removing the disc, using a tool called pituitary rongeurs.

The bone removal went well, he said. "I got a big fragment from one corner that I thought was going a long way toward helping the problem."

At 9:45, Lord said two things went wrong. First, when he removed one piece of bone, the cavity filled with clear liquid. That indicated a puncture in the dura, which holds the fluid that protects the brain and spinal cord. Lord said he had never encountered a spinal fluid leak in neck surgery before.

Second, Tarczewski's blood pressure plummeted to 40 over 30.

"A pressure at that level is a crisis," said Brumsted of Fletcher Allen, noting that normal pressure is 120 over 80. "If you don't act quickly, that person is going to die."

Dr. Beach Conger, Ascutney's chief of staff, came to the operating room. The anesthesiologist administered a blood pressure drug, and Conger stayed as Tarczewski's readings recovered.

Dr. John Frymoyer, former dean of UVM's medical school and an internationally recognized spine specialist, said in a June interview that in surgeries of this kind, tears in the dura are an "everyday" occurrence.

"But every operation is serious," Frymoyer added. Depending on how much fluid is leaking, "I might stitch it up, or I might do nothing. Most of the time it closes over."

Instead, Lord said, he "gently" packed an unspecified amount of clotting powder into the wound. Then he finished the surgery.

In later court depositions, medical experts were critical of both the choice of powder and the amount Lord used. Dr. Peter Upton, a Rutland neurosurgeon, said in his deposition: "The amount you put in there dry is going to increase in size as it becomes wet. ... The amount they put in was obviously more than this woman's tolerance for that, and it caused pressure on the spinal cord."

Lord defended his actions, saying in his deposition that the powder "offers a way to get a plug into the leak without the difficulties associated with other techniques" such as stitching.

Tarczewski was wheeled to the recovery room at 10:20. Even before she awoke, complications became apparent.

"You could die"

In his 1991 deposition, Dr. Lord was asked to read from the recovery room record. He said that when the patient arrived she showed "unpurposeful motion."

Tarczewski's husband, Richard, described it this way: "One leg was flailing all over the place. ... And the rest of her couldn't move."

Lord was busy by then with another patient's surgery. He examined Tarczewski again at 12:50 p.m., by which time she could not feel her left arm and leg. Lord testified that he called Dartmouth Hitchcock and reached neurosurgeon Dr. Robert Harbaugh. Both doctors testified that they agreed to send Tarczewski to Dartmouth.

"I felt we had a neurological emergency," Lord said in 1991 testimony.

By the time Tarczewski arrived at Dartmouth Hitchcock, she was a quadriplegic. Tests found a lump where her disc had been, pressing on the nerve tissue.

In a 1991 deposition Harbaugh testified: "A compression of the spinal cord could be devastating neurologically."

Harbaugh proposed emergency surgery, Richard Tarczewski said in a later interview. "He told Lois, 'You could die if I do this, you could die if I don't.'"

Tarczewski's second operation that day began at 5:15 p.m. Harbaugh removed a lump of clotting chemicals he testified was slightly smaller than the top half of a thumb.

He then told the family the damage could prove temporary. With work, Tarczewski might regain partial function and sensation.

Lord visited Tarczewski in the hospital, she testified, though she was still drugged enough from the surgeries not to recall the exact date. "He leaned over the bed and ... he apologized. He told me that he was sorry for what happened."

In a May interview, Tarczewski's husband, Richard, shook his head. "Dr. Harbaugh has done about 200 of these surgeries. But she went to Ascutney. If only ..."

The 3 percent

Little objective data exist about the quality of Vermont's doctors.

"In every profession there is a range of skill level in its practitioners," said Brumsted of Fletcher Allen. "The stakes are high enough that we should identify the physicians who don't have the skill levels for what they're attempting to do."

A study published last year in the Journal of the American Medical Association assessed the treatment Medicare patients received on 28 procedures. Vermont ranked second in the nation.

That said, a 1999 Institute of Medicine study estimated that up to 98,000 Americans die yearly from medical errors -- nearly as many as car crashes (43,438), breast cancer (42,297) and AIDS (16,516) combined.

Researchers have studied the rate of medical mistakes in Colorado, Utah, new York and California. The average finding was errors in 3.7 percent of cases.

"I don't know if it's 5 percent or half of 1 percent of doctors who are providing substandard care," said Michael Hanley, a Norwich attorney who represented Tarczewski in her lawsuit against Lord. "Let's say it's 3 percent. Is that an acceptable rate?"

A record of problems

Lois Tarczewski was not the only patient of Dr. Lord's to experience a controversial outcome. She was preceded by the Margarsian and Lockwood lawsuits.

But others followed. Health consumers in many other states can contact a central information resource -- by phone or the Internet -- to learn a doctor's legal history. In Vermont, it takes a trip to courthouses to search through records.

For Lord, Windsor County court records include these resolved cases:

     --In 1991 Lord performed a disc removal from the spine of Jean Davies, an elderly woman from North Pomfret. Court records say her dura was punctured during surgery. During a follow-up operation, Lord allegedly nicked the main artery to her legs. The surgical instrument involved was, again, Lord's pituitary rongeurs. She bled to death two days later, said Dr. Kenneth Morley of Mount Ascutney Hospital in his deposition.

Lord denied the accusations of malpractice. The case was settled out of court with a confidentiality agreement, no acknowledgment of wrongdoing and a payment to Davies' estate.

     --Phillip Damone of Ludlow sued Lord in 1995, alleging the doctor did not remove a tumor properly, so it returned and required further surgery.

Lord denied the accusations of improper care. The case was settled before going to trial, with a confidentiality agreement and no acknowledgment of wrongdoing. Damone was compensated, said his attorney, William Dagger.

     --In 1996 Mary Larmie of Hartland sued Lord over his treatment of her husband. George Larmie underwent knee surgery with Lord, the case alleged, and developed an infection that went untreated for weeks. The suit claimed George Larmie "endured great pain" and then died.

Lord denied the accusations of negligence. The case was settled with a confidentiality agreement and no acknowledgment of wrongdoing. Larmie's lawyer, Emily Davis, said the settlement included a payment.

     --In 1998, Paul Lashin of Melville, N.Y. sued Lord over treatment he provided when Lashin broke his thigh bone. Numerous complications arose during the repair surgery, the case alleged. The surgery, normally two hours, was aborted after four. Lashin later had additional surgery on his leg at Dartmouth Hitchcock Medical Center.

Lord denied the allegations of misreading X-rays and failing to exercise reasonable skill and knowledge. Lashin later dropped the suit.

     --Katrina and David Short of Norwich filed suit against Lord in 1994, accusing him of improperly diagnosing a nerve problem, resulting in her permanent disability.

Lord denied the allegation of improper diagnosis. The settlement contract prohibits the parties from commenting on the outcome.

The doctors' role

Records of suits against Lord are spread among three courthouses and span 18 years. Only in-depth research will tell any Vermonter what any doctor's record is.

However, "when it comes to error-prone physicians," said Hanley, Tarczewski's attorney, "the medical community knows who these people are."

That raises the question of whether doctors police one another. Their conduct would matter in Lord's case, because Board of Medical Practice records indicate at least six physicians treated Lord's patients after he had.

Did the condition of those patients prompt doctors to inform regulators, notify Lord's employers or contact Lord himself?

Confidentiality policies prevent Vermonters from ever finding out.

In the Tarczewski case, the privacy of doctors' peer review process blocks Vermonters from learning whether Harbaugh did or did not contact Mount Ascutney Hospital.

"I challenge Dartmouth-Hitchcock to provide any evidence that they reported back," Hanley said.

Harbaugh declined several requests to be interviewed. Dartmouth-Hitchcock officials also declined to say whether any hospital-to-hospital contact occurred in the case, saying patients' medical records are confidential.

Fletcher Allen does not require doctors to inform rural hospitals about patients they send, even when the quality of care has been questionable. "There is no policy here that demands that flow of information," Chief Medical Officer Brumsted said.

Lord said in a May interview with the Free Press that this approach is typical. "It is not uncommon for your patient to go" to a major medical center, "and you never hear back again."

Richard Tarczewski, discussing in a May interview the confidentiality of peer review and medical records, offered his diagnosis: "It's like they have a code of silence."

Malpractice lawyers argue that this code is strongest in medical lawsuits.

"I can't get experts in Vermont to testify," Shelburne attorney Gareth Caldbeck said. "In such a small state, they all know one another, they get referrals from one another. They won't testify against one another."

One public measure could indicate whether doctors act on one another's performance: Medical Practice Board records. The board has opened five cases involving Lord that led to discipline, and state law requires the board to identify who filed the complaint that prompted the investigation.

A Burlington Free Press public records request found that Tarczewski filed one of the five. The board denied the Freedom of Information Act request to reveal the others.

Thus the board did not identify any of the four complaints as a result of action by Harbaugh; nor by Conger, who aided in the Tarczewski case and performed the Davies autopsy; nor by the Brattleboro neurologist who helped in Tarczewski's diagnosis; nor by the surgeon who assisted Lord in her operation.

Who filed those complaints? Vermonters have no way of knowing.

Confidentiality is not always airtight, however. The Tarczewski lawsuit hinged in part on whether the lump in her neck was a blood clot or the clotting powder. During the suit's depositions, a slide from the Hitchcock lab arrived in Hanley's office indicating that the lump was an "amorphous acellular mass" --not a blood clot.

It had been mailed anonymously.

COMING MONDAY: Lois Tarczewski finds out how difficult her new life has become and discovers how difficult it is to get action from the courts, the medical profession and the state medical board.

By Stephen Kiernan

Free Press Staff Writer

Monday, December 10, 2001

Lois Tarczewski walked into Mount Ascutney Hospital in Windsor on Dec. 21, 1989. Dr. C. Frederick Lord performed surgery on her spine. Within hours, she could not move her arms or control her flailing legs.

Tarczewski regained partial control of her limbs after emergency surgery at Dartmouth-Hitchcock Medical Center later that day, but her medical problems lasted until her death last December.

Was her surgeon scrutinized by his employer? Mount Ascutney Hospital refuses to say.

Did Tarczewski's health insurers investigate, after paying roughly $1 million for her ongoing care? The insurers decline to comment.

Did Lord's malpractice insurers look into the case after Tarczewski and six subsequent patients sued him? They say they did not. They also say he remains insured against lawsuits today.

Tarczewski did not know Lord's history when she went to him for surgery. Later patients also did not know, because doctors' performance records are more shielded in Vermont than in many other states.

Court records and state regulators allege Lord made medical mistakes on at least 12 patients in addition to Tarczewski: operations on the wrong body part, prescription errors, even surgical complications resulting in death.

Lord's responses to the lawsuits' allegations deny all medical wrongdoing. Likewise his negotiations with state physician regulators acknowledge no medical errors. Having investigated Lord's conduct twice, the Medical Practice Board permitted him to continue practicing medicine with some restrictions.

Today Vermonters receive care from Lord at Mount Ascutney Hospital. Today much of his record, like that of all physicians, remains confidential. The rest is obtainable only through extensive court research.

Vermont health consumers thus remain uninformed about Lord, and all doctors.

Hospital protection

Several days after her surgeries, Lois Tarczewski returned to Mount Ascutney for rehabilitation. She had minimal control of her arms and legs. Her left arm had to be clasped in a painful brace for as much of the day as she could bear, to prevent it from curling.

Tarczewski also experienced a rare nerve syndrome, in which half of her body had uncontrollable spasms. The other half was so sensitive, the slightest touch -- such as the family cat brushing against her leg -- felt like fire.

A Dartmouth-Hitchcock surgeon had told Tarczewski's family that she might regain partial use of her limbs. That promise was fulfilled over time.

"She was about three months into rehab," her husband, Richard, recalled in an April interview. "She was able to walk, very jerky, and not on lawn or uneven ground, and her feet would swell to the size of footballs."

Soon her treatment faced a threat: the limits of health insurance.

"Blue Cross says only so many visits to physical therapy," Richard said.

Paying the bill themselves was impossible, he said. He had a municipal job, and they were living in a trailer at the time. No longer able to work, Lois Tarczewski received a federal disability check of $384 a month.

She paid her outstanding balance at Dartmouth-Hitchcock Medical Center at the rate of $10 a month. In her 1991 lawsuit against Lord, Tarczewski testified that she often skipped appointments with a doctor helping her with pain management because she could not afford the $19 office visit fee.

An offer of help came in an unusual way.

"I went into the hospital one day for my therapy," Tarczewski said in a deposition for her lawsuit. The therapist said the top administrator of Mount Ascutney Hospital, Richard Slusky, wanted to see her.

"He told me that the hospital was very concerned about my well-being ... and that they would be more than glad to write this therapy off, and they had only one thing they wanted from me, and that was to sign a paper holding them not responsible for what happened to me. ..."

"And I just sat there. I was dumbfounded. ...

"'Well, it sounds real good,' I said, 'and I would really appreciate that, but I think before I sign anything, I'd better talk to my attorney,' and the man's face almost hit the floor, when I said that."

Asked in an interview about the incident, Slusky responded: "I'm not going to comment on any element or aspect of the Tarczewski case."

She never signed. Tarczewski testified that Mount Ascutney stopped billing her for care anyway. She did not sue the hospital.

Hospital privacy

Doctors are protected by hospitals, whose review of a case that goes badly is shielded from the public. State law mandates that physicians' review of their peers remain confidential.

"Vermont believes the intent of peer review is to improve patient care," explained Matson Sewell, regional risk manager at Dartmouth-Hitchcock. "In order for people to be open, honest and aggressive in these issues, they need privacy."

At Mount Ascutney Hospital, "we do have a peer review process," said Slusky, administrator there for 19 years. He declined to say whether a review occurred in the Tarczewski case.

Slusky's deposition in a 1993 malpractice suit against Lord, filed by the estate of Jean Davies, addressed Mount Ascutney's peer review in greater detail. When a hospital is concerned about the quality of a doctor's care, he said, the hospital may limit what procedures he can perform.

Lawyers asked Slusky whether the hospital had limited Lord's work in any way. He said personnel records, and the confidential peer review process, prohibited him from answering.

So, if Mount Ascutney Hospital took any action with Lord as a result of Tarczewski's experience, Vermonters would have no way of knowing.

In the roughly two years between Tarczewski's surgery and her filing suit against Lord, the public could find out other information about him.

In 1991, for example, the physicians at Mount Ascutney Hospital elected Lord chief of the hospital's medical staff.

Vermonters could also have contacted the state's hospital budget regulators to determine Lord's contribution to the hospital's finances.

While he has practiced at Mount Ascutney, regulators say, inpatient orthopedic surgery revenues have averaged $1.1 million per year. In 1990, when the hospital's total inpatient revenues were $3.75 million, orthopedics produced $1.15 million -- 30.7 percent.

Lord was not the sole orthopedic surgeon during all of this time, but according to federal Form 990 filings, which are public records of nonprofit organizations' finances, Lord's contribution in 1999 brought him a salary and benefits of $172,525.

The drug trap

Despite the outward signs of success, Lord's health was unraveling.

In 1992, Lord's wife and Ascutney's chief of staff, Dr. Beach Conger, held an intervention. On Dec. 6, Lord entered the Talbott Marsh Recovery Center in Atlanta.

Lord acknowledged that event in a two-hour interview with the Free Press in April. He also explained the situation in further detail:

"The problem was alcohol and prescription narcotics. Because of a physical ailment, I fell into the trap of self-prescribed medication. ...

"Had I not gone into treatment, I would have been dead within a year."

The protections that surround doctors remained intact. Few people knew where Lord had gone or why he was away.

Colleagues testified in a 1993 lawsuit that Lord took a medical leave. They declined to elaborate.

Word got out anyway. A priest mentioned Lord's illness from the pulpit at St. Francis Church in Windsor.

"This is a small community," hospital administrator Slusky said. "Things that go wrong are generally known."

Lord was discharged from Talbott Marsh on May 1, 1993. He wanted to practice again.

"A decision was made to employ him with certain conditions," Slusky said. "We felt we had taken sufficient precautions."

Slusky declined to say what those precautions or conditions were. He also declined to say whether physicians at Mount Ascutney must undergo drug testing, saying personnel records are confidential.

Community members welcomed Lord's return. West Windsor pediatrician Dr. Kathleen Geagan said, "I admire the fact that he came back in 1993 and resumed his practice. That took a lot of guts."

Lord recommenced work. In his April interview with the Free Press, he described his condition at the time as "sober and a little fragile."

The court silence

The Tarczewski family sought $5 million in its lawsuit for Lois' damaged health and $500,000 for Richard's anguish and lost time from work. Lord denied all accusations of wrongdoing.

The family adjusted to a changed life. Tarczewski continued physical therapy, wore the arm brace, suffered compromised body functions from bowel control to sleeping to standing up, and endured in silence.

"She was not a complainer," Richard said.

During a 1991 deposition, an attorney asked Tarczewski how she was feeling that day. She answered:

"My right side has got the burning sensation that is there constantly, continuously, 24 hours a day, and my back and left side, from my neck down, are in pain from the muscle spasms that I have, from tendons and ligaments being too tight and pulling, that cause pain always."

In 1993 the Tarczewskis reached a settlement in their lawsuit against Lord. What did that deal include?

"I don't have a 65-foot sailboat, but we got this house," Richard said, referring to his Ascutney home with a pond, stands of pines and above-ground pool, "and I'm still working."

Richard said the settlement deal prohibits both sides from being more specific.

That is commonplace for malpractice suits, as Lord exemplifies. He has been sued nine times, denying wrongdoing in all cases. One suit resulted in a $250,000 verdict against him. Seven were resolved in sealed settlements, preventing the public from assessing whether the suits had merit. One case, filed in August, is unresolved.

One central resource is supposed to contain the malpractice history of every doctor in America: the National Practitioner Data Bank in Chantilly, Va. Federal law requires health organizations to inform the data bank about doctor lawsuits and serious medical errors.

The accuracy of that data is in question. The inspector general for the federal Agency of Health and Human Services reported in May that in the past decade, 84 percent of managed care companies and 60 percent of hospitals reported no "adverse actions."

The report concluded that most health organizations do little to protect patients from "poorly performing practitioners."

Whatever the accuracy, the contents of the database are intended for use by hospitals and health insurers. To the public, these records remain confidential.

Gov. Howard Dean, a physician, said health consumers deserve access to this information.

Above a threshold that allows for insurers settling to make a nuisance suit go away, he said, "Anybody who has been found to have committed malpractice should be open to public review."

The insurers' role

Lord's record raises questions about private review, as well. How many lawsuits can a doctor experience, for example, before his malpractice insurers take note?

As an employee of a hospital in the network of Dartmouth-Hitchcock Medical Center, Lord's malpractice insurance is provided by that alliance. Dartmouth-Hitchcock does not own the alliance hospitals, but it provides services such as participation in the network's malpractice program.

Dartmouth-Hitchcock officials said they insure Lord, but responsibility for the quality of his care lies elsewhere.

"We do have ways of monitoring the frequency and severity of suits," said John Collins, chief executive of the Hitchcock clinic.

Dartmouth-Hitchcock hospital president James Varnum added that Lord's record was "on the radar," yet Collins said Dartmouth-Hitchcock does not take action regarding local physicians' malpractice records. "We rely on the scrutiny of local hospitals to monitor the individuals who have privileges there. ... We do not substitute our judgment for their judgment."

Court records show Lord has been sued at least nine times -- twice before the Tarczewski case, and six times afterward. He remains insured today, Collins said, through the Dartmouth-Hitchcock program.

One patient of Lord's has made the lack of malpractice information the centerpiece of his complaint.

James Nagle of Readsboro stumbled during his work for the U.S. Census, hurt his back and filed a disability claim. Medical Consultant Network of Seattle, which handles such cases for the federal government, sent Nagle to Lord for evaluation.

In January, Lord met with the 60-year-old. Nagle alleges Lord's actions during the examination caused injuries to his back and ribs. Last week Lord declined to comment on the suit.

The unique aspect of the case is that Medical Consultant Network also is named as a defendant. Nagle alleges the company "failed to notify plaintiff of previous malpractice claims; failed to investigate Dr. Lord's competence; and as such has failed to supply plaintiff with the due care it owes to the plaintiff."

Ritchie Berger, a Burlington attorney representing Medical Consultant Network, predicted his client would be dismissed from the suit promptly.

Nagle's lawyer, Thomas Bixby of Brattleboro, countered, "The patient has a right to know whether or not the physician has been rebuked by a peer review committee. The patient is entitled to know up front if the physician is under any restrictions."

In an interview before the Nagle suit's filing, Gov. Dean said "it's not fair" for the public to be unaware of a physician's history. "If you're going to trust your life to a doctor, you ought to know his past."

Some doctors say it should not take a public release of information for their peers to take more responsibility for the quality of their care.

Dr. John Mazuzan, an anesthesiologist and chairman of the Vermont Board of Medical Practice during the Lord investigation, said, "If I had more than three malpractice judgments against me," he said, "I'd hang up my jockstrap."

Health insurers

Malpractice is not the only kind of insurance that pertains to Lord's history; his patients' care also has been paid for by health insurers.

Have these companies acted in response to Lord's record? Citing the confidentiality of peer reviews, they decline to say.

The Institute of Medicine at the National Academy of Science says the cost of medical errors is $8.8 billion annually in the United States.

Tarczewski's case is an example. She testified in her suit against Lord that by 1991, she was working regularly with five doctors and two therapists. Her nerve syndrome required costly drugs. She needed tanks of oxygen, a wheelchair and an arm brace.

Richard Tarczewski said his wife's care after the Lord surgery cost nearly $1 million. Her insurer, through Richard's work benefits, was Blue Cross/Blue Shield of Vermont.

Blue Cross has about 175,000 Vermont customers, making it the state's largest private insurer. Quality Improvement Director Jill Olson declined to say whether Blue Cross received complaints about Lord, as well as whether he was ever investigated: "I am obligated by law to keep the content of our credentialing/peer review process confidential."

If a customer complains about a doctor, Olson said in an e-mail interview, "we will not share back the results of that investigation. ... The larger purpose, assuring quality care, is best served by an open and frank discussion and analysis of patient care by physician peers. ... If our peer review process became fodder for lawsuits against our providers, our providers might be far less willing to disclose information to us."

Gov. Dean objected to that policy.

"An insurance company can already say, 'I'm not going to allow any of our insured patients to go to that doctor because of excess costs,'" Dean said. "If insurance companies can do it for cost control, they ought to do it for quality."

Vermont's second-largest insurer, meanwhile, is the government-funded Medicaid system. It serves about 112,000 people.

The federal government has authority to declare doctors ineligible as a result of such things as billing fraud, said Paul Wallace Brodeur of the state Medicaid office, but he said Vermont is not allowed to set its own standards.

"The federal law should be changed," Dean said. "Medicaid ought to be able to do what private insurers do: eliminate those who cannot deliver a proper standard of care and those whose practice costs are unjustifiable."

In Tarczewski's case, the bills mounted. Richard said just five days of Lois' hospitalization last year cost $29,000.

"Every time they get a bill for Dr. Lord," Richard Tarczewski said, "a light ought to go on."

Instead, the public remained in the dark.

Contact Stephen Kiernan at 660-1861 or skiernan@bfp.burlingtonfreepress.com

COMING TUESDAY: Lois Tarczewski complains to the state's regulators of doctors and discovers that her case does not even merit a mention.

Vermont regulators finally take action

By Stephen Kiernan

Free Press Staff Writer

Tuesday, December 11, 2001

MONTPELIER -- When Lois Tarczewski learned her surgeon had entered a drug rehabilitation program, she filed a complaint with the state Medical Practice Board.

The board is charged by law with regulating doctors to protect "the public health, safety and welfare."

An operation by Dr. C. Frederick Lord at Mount Ascutney Hospital had left her unable to move her arms and control her legs. Emergency surgery later that day at Dartmouth-Hitchcock Medical Center brought partial recovery of her arms and legs, but without relief from intense pain.

Tarczewski sued Lord and reached a settlement that enabled her family to buy a new house. She remained unsatisfied.

"When a person wins a malpractice settlement," said Robert Manchester, a Burlington attorney, "that takes care of them, maybe. But it doesn't do anything for the doctor's next patient."

Tarczewski had already encountered what her husband called "the code of silence" surrounding doctors -- the policies of confidentiality that prevent the public from knowing when physicians err. Lawsuits and state regulators allege Lord committed medical errors on at least 12 patients in addition to Tarczewski: operations on the wrong body part, prescription mistakes, surgical complications that resulted in death.

There were many contributors to the confidentiality surrounding Lord: hospitals, insurers and courts. State laws intended to protect medical records and doctors' scrutiny of each other's work shield physicians from accountability, too.

The Vermont Board of Medical Practice would prove to be the most secretive of all.

The state Board of Medical Practice is a panel of 11 health professionals and three nonphysicians appointed by the governor to regulate the 2,708 doctors licensed to practice in Vermont. The annual budget for licensing, investigating and disciplining doctors is $623,000.

Laws governing the board provide the broadest confidentiality protections in state government. Unlike the panels that oversee Vermont's 39 other licensed professions, for example, the medical board is exempt from laws governing public records and open meetings.

No part of a complaint against a medical doctor becomes public, for example, unless the board takes disciplinary action. By contrast, state laws require that charges filed against nurses, acupuncturists, chiropractors and psychotherapists become public records the moment they are filed.

A Vermont doctor could have 25 complaints, no punishments, and no public record of patients' dissatisfaction.

The protection is one-sided, however. The Medical Practice Board's complaint form requires the patient to surrender the privacy of his or her medical records to the board.

When the board and a physician agree on a "stipulation" -- a plea-bargain, in effect, in which a doctor need not admit error -- the patient and the public are prevented from learning how the board reached the agreement. The investigation, negotiation and decision_making records are confidential.

Since 1990, when state law was changed to give the board its current makeup and powers, the board has taken 123 disciplinary actions, 10.7 percent of the 1,146 complaints.

When the board and a doctor fail to reach a stipulation, the board conducts a full hearing. These events are held in a courtroom; the testimony, evidence and decision are public records.

Since 1990, the board has conducted 40 hearings in which the full records became public, about 3.5 percent of the total number of complaints.

Karen Meyer, who recently stepped down as executive director of the Vermont Medical Society to take a position at the University of Vermont, and who is a former chairwoman of the Medical Practice Board, defended the system.

Investigations involve patients' medical records and doctors' personnel files, Meyer said, so she has "no problem" with the level of confidentiality. "I am fiercely protective of personal professional matters. As well as medical privacy."

Michael Hanley of Norwich, the Tarczewskis' attorney, sees the confidentiality differently: "I don't think doctors should hide behind their patients. The secrecy is to protect the medical profession."

The board ruled on Tarczewski's complaint Oct. 12, 1994, almost five years after her surgery. The stipulation required Lord to uphold a pledge to stay sober that he made upon leaving drug treatment at the Talbott Marsh Recovery Center in Atlanta.

"It took us a year to negotiate that I should abide by the discharge contract I had already signed," Lord said in an April interview with The Burlington Free Press.

The stipulation made no mention of Tarczewski's case, nor of any spinal surgery.

In 1997 the Medical Practice Board again began investigating Lord. This review involved 11 cases occurring before and after his 1993 drug treatment. The reason for this inquiry remains unclear, and highlights how state law inhibits disclosure.

"The hospital filed that complaint against me," Lord said. He should know: State law requires the board to notify a doctor of who has complained about him.

In a May interview, Mount Ascutney Hospital administrator Richard Slusky contradicted Lord: "The hospital did not file a complaint."

The Free Press filed a public records request with the board, which is required by law to identify who complained in cases that lead to discipline.

Executive Director Gloria Hurd rejected that request May 2, writing that these investigations "were not opened as a result of a 'complaint' from a person." She said the board opened this investigation because the board had "'reason to believe, without a formal complaint' that an investigation was merited."

Regardless of the reason, the board's activities in Montpelier had diminishing relevance in the Tarczewski household.

"Lois received a thick packet of information about that case," Richard Tarczewski recalled, "but nobody paid it much attention because that was right about the time when she started her decline."

The Medical Practice Board held a hearing Dec. 6, 2000, to report the results of its investigation. Tarczewski had been invited, but her worsening health made attending impossible.

At the hearing the board issued a new stipulation. Such documents include the unproven allegations against a doctor and are available to the public by request. The stipulation included these charges:

     --Lord set a boy's broken leg in 1986 and "failed to properly recognize a significant malrotation of the injured leg which led to subsequent malunion of the leg. ... Subsequent surgery was required" to repair the outwardly turned limb.

     --In 1989, Lord performed back surgery on a middle-aged woman "in a manner which produced severe inatrogenic spinal cord injury and quadriparesis," resulting in permanent injury to her spinal cord.

     --In 1991, Lord replaced the left knee of an elderly woman, positioned one component incorrectly and failed to respond to her continuing pain. The patient's "pain persisted for approximately one year until revision of the component by another surgeon."

     --In 1991, Lord's back operation on an elderly woman "produced an unplanned dural tear" and injury to her spinal cord. During subsequent surgery to correct these problems, Lord nicked the main artery to her legs. The patient "died two days after this surgery."

     --In 1991, during a hip operation a middle_aged woman "suffered a burn to her shoulder from placement of a heated bag against her body which was used to position her for surgery."

     --In 1991, Lord performed a hip replacement on a middle-aged woman who then "suffered a series of dislocations." The prosthetic component was in the wrong position. During a second surgery that sought to correct the problem, one screw was placed such that it pinched a nerve. The patient experienced foot control problems and persistent pain.

     --In 1992, Lord operated on a middle-aged woman "and performed the wrong surgery on her." His surgical report, prepared the next day, "failed to note that he had operated on the wrong body part."

     --In 1992, Lord performed surgery to remove a tumor from a young man but did not take enough surrounding tissue. He then failed to perform additional surgery to prevent the tumor's return.

     --In 1993, Lord performed knee surgery on an elderly man. He "failed over time to recognize the extent and seriousness of a post-operative infection." Lord later gave the patient a drug that can be toxic to kidneys "without appropriate evaluation and monitoring."

     --In 1995, Lord operated on a man with a broken thigh bone. During surgery he "employed an operative technique which was deficient as to the choice of hardware used, failed to exercise adequate intra-operative attention" to the patient's fluid balance, "and failed in medical records to reflect adequately the problems that developed" during surgery.

     --In a 1997 surgery on an elderly woman, Lord "failed to utilize appropriate precautions and safety checks in the operating room." He operated on the wrong body part.

Asked about this list of allegations in an April interview with the Free Press, Lord rose, closed his conference room door, then offered an assessment:

"In retrospect, there were three broad categories into which my behavior fell. ... There was a real need to prove myself. ... There was an almost pathological desire to succeed, which probably led to a degree of arrogance. The effect was that I was taking on cases I probably should have referred. ... and there was chemical dependency -- the judgment really kind of gets cloudy."

Lord also acknowledged his remorse readily: "If you could look at any of these cases and think I could go home and sleep at night -- no way. Nobody who cares about people ever wants that to happen."

Lord agreed to the stipulation. He also denied its allegations.

The document said that while Lord "makes no express admission here as to these allegations, he has determined that he will not contest them in light of the desire of the parties to resolve these matters without a hearing."

The board's investigation and settlement negotiations with Lord remain confidential. The stipulation did make public the following penalties:

     --Lord is no longer permitted to be the primary surgeon in spinal operations. That restriction was almost unnecessary. He had stopped such surgeries in 1992.

     --The stipulation detailed 43 procedures Lord may perform with an assisting surgeon, from treating fractures to conducting amputations. Nine more procedures are permitted after another surgeon's approval.

"No one will do that, though," Lord said in the May interview, "because the liability is too great."

     --He is prohibited from providing painkillers to players in sports events beyond aspirin and its equivalent.

     --He must complete continuing education. His supervisor is Dr. Beach Conger, who advised him during Tarczewski's surgery and who performed the autopsy on another patient of Lord's. Conger must file quarterly reports on Lord's performance.

Under the stipulation Lord can still set broken bones, see patients and perform "non-complex" procedures up to 35 hours a week. He stopped practicing at Springfield Hospital, and the stipulation makes his work at Valley Regional Hospital in Claremont, N.H., "no more than occasional."

Many community members remain supporters of Lord. Mary Louise Horn, a registered nurse, is administrator of Cedar Hill Health Center, a continuing-care facility in Windsor with 39 skilled-nursing beds. Horn said Cedar Hill sends six to 10 residents a year to Lord for care.

"He has been an excellent doctor for any residents we have referred to him," Horn said. "He's done a wonderful job. I don't have anything but good to say about Dr. Lord."

Lord remains an active employee of Mount Ascutney Hospital.

Was the Medical Practice Board right to allow Lord to continue practicing? Was the investigation thorough? Was Lord treated fairly? What do Conger's quarterly reports say? The public has no way of knowing.

The Free Press filed a public records request with the board, seeking investigation materials, draft settlement agreements, lists of witnesses, hearing transcripts and proof that Lord had complied with the board's orders.

After consulting the Attorney General's Office, board director Gloria Hurd denied all of these requests. Her March 7 letter cited state law that exempts the board from disclosure statutes that apply to the rest of state government.

Those protections include the Legislature and the governor, who are not permitted to review the board's decision-making. A memorandum of understanding established last year permits the secretary of state to review materials that led to board decisions. However, the agreement gives Secretary of State Deborah Markowitz no authority to act upon what she learns.

Medical Practice Board documents identify patients only by letters of the alphabet. According to her attorney, Michael Hanley, Lois Tarczewski is "Patient J."

In the 28-page decision, Patient J's case merited exactly three sentences.

"Respondent," or Dr. Lord, the board wrote, "performed back surgery, involving C6-7 disc excision and fusion on Patient J, a middle-age woman, in 1989 in a manner which produced severe inatrogenic spinal cord injury and quadriparesis. Moreover, respondent's failure to exercise proper skill, care and judgment while operating on and caring for Patient J resulted in permanent injury to her spinal cord. Respondent's medical records fail to document that he clearly and fully advised Patient J, pre_operatively, of the possibility of the type of harm she subsequently suffered during surgery."

The board's action Dec. 6, 2000, came 15 days short of the 11th anniversary of Tarczewski's surgery.

Lord expressed his opinion of the stipulation in an April interview: "There ought to be forgiveness and redemption."

News of the stipulation never reached Patient J.

Nov. 28, Tarczewski's daughter Jennifer O'Brien heard her calling for help.

"She was really having a hard time breathing. I threw a fleece shirt over her ... and we went to Hitchcock. She was panicking by then. Her eyes were huge."

The night of Dec. 5 "it was noisy in her room," her husband, Richard, said. "Everyone was there, and my in-laws had a priest, but I kicked everybody out. I wanted a little bit of quiet."

The crowd went out to the corridor. Richard stayed with Lois.

"I got a nice hug," Richard said. "It was peaceful, anyway."

At 8:30 a.m. Dec. 6, 2000, just hours before the Medical Practice Board would issue its stipulation against Lord, Lois Tarczewski stopped breathing.

She was 54.

Contact Stephen Kiernan at 660_1861 or skiernan@bfp.burlingtonfreepress.com

WEDNESDAY: A grieving Tarczewski family calls for justice and greater public accountability for doctors. Such changes have been proposed before, however, with little result.

Family wants open, aggressive scrutiny

By Stephen Kiernan

Free Press Staff Writer

Wednesday, December 12, 2001

Last of four parts

ASCUTNEY -- The refrigerator in the home of the late Lois Tarczewski is covered with artwork by her 8-year-old granddaughter, Kristin O'Brien.

In one picture, Tarczewski wears angel's wings. In another, she is saying, "I will be with you always."

Lois Tarczewski's 11-year medical struggle, and death one year ago at age 54, continue to echo in the lives of everyone who knew her.

Her younger sister, Gloria Schickling of Penn_sylvania, says spine surgery in 1989 by Dr. C. Frederick Lord ruined Tarczewski's life. "She didn't die last December. My sister, as I knew her, died in 1989."

Lois Tarczewski's husband, Richard, says after taking care of his wife all those years, his life has no purpose. "I don't know what I'm going to do. Sell the house? Move south? What? What do I do now?"

Lord, in an interview with The Burlington Free Press in May, said of the Tarczewski case: "I've had a hard time with that one for a long time. It was devastating. It was absolutely devastating. For everybody."

The survivors want change to come from Tarczewski's case. Past efforts to reform medical regulation have died in the Legislature. Yet family members believe the Vermont Board of Medical Practice should become more aggressive about policing doctors like Lord.

"I understand that anybody makes mistakes," Schickling said, "but with all the pain and agony he has caused people ... how many mistakes are you allowed?"

They also want regulation of Vermont physicians to be open to the public.

"If I want to get aluminum siding," said Rich_ard Tarczewski, "I can call Better Business and find out the contractor's re_cord. Is there any Better Business for doctors? There ought to be."

The medical board

The Vermont Board of Medical Practice is a panel of 14 appointed by the governor to regulate the 2,708 medical doctors licensed to practice in Vermont, as well as podiatrists and physicians' assistants. Nine board members are doctors, three are public citizens, one is a physician's assistant and one is a podiatrist.

This year's budget is $622,773, generated by licensing fees, for reviewing new license applications and investigating complaints against physicians.

Vermonters have filed 1,146 such complaints in the past decade. These investigations have led to 123 disciplinary actions, a rate of 10.7 percent.

That record has led Public Citizen, a national watchdog group founded by Ralph Nader, to rate Vermont's board favorably. The ranking is 16th best in the nation.

Yet Public Citizen is also critical of the national performance by which Vermont is judged.

"Too little discipline is still being done," said this year's ranking report. "Far too few state medical board disciplinary actions are for medical negligence or incompetence. ... This country's system for ensuring medical quality needs to be made much stronger."

Shortly after his wife's death, Richard Tarczewski showed his own feelings about Vermont regulators' work. He was sorting through his wife's papers and found the medical practice board packet involving Dr. Lord.

"I just threw it out," he said. "Let someone else deal with it."

The board operates under three policies that have sparked controversy: confidentiality, the standards for punishment, and primarily doctors overseeing doctors.

Confidentiality

The medical practice board operates under a cloak of confidentiality unique in Vermont. Its gatherings are not subject to state open meetings law. Documents are exempt from public records law. Should a complaining patient speak before the board, the minutes will not reflect that testimony.

These policies contrast with those of the Vermont Office of Professional Regulation, which oversees 39 other licensed jobs from real estate agents to midwives. The office makes public at the outset allegations made against professionals and others regulated by state law. The office must also abide by Vermont's public records and open meetings laws.

Medical practice board members defend the confidentiality, saying many complaints are frivolous. Former board chairman Dr. John Mazuzan said, "This process protects a doctor from having his name besmirched without basis."

Former board member Dr. Charles Cunningham agreed. "I don't think it's appropriate for the general public to be titillated by what the Medical Practice Board or any other board is doing."

Gov. Howard Dean, a medical doctor, dismissed that reasoning. "Any complaint the board judges to have merit ought to be a fully public matter, not just for doctors, but for all professions."

"In courts, an outcome is decided in an open proceeding," said Robert Manchester, a Burlington attorney who specializes in medical cases. "In a licensing matter where public health is an issue, why can't the family speak? Or even review the investigators' report? Who is protecting whom?"

The process

The medical board has three levels of findings:

     --If the board investigates a complaint and decides it does not merit punishment, the case history remains confidential.

The person who complained is not permitted to know the basis for the board's decision.

Neither is the Legislature nor the governor. Vermonters cannot learn if their doctor has ever been the subject of a dismissed complaint.

This policy has sealed 1,023 investigations since 1990.

Secretary of State Deborah Markowitz said that practice is unfair to health consumers.

"The public ought to know that a certain doctor has a number of complaints against him," Markowitz said. "Even if complaints are dismissed, if there's a pattern and you have a choice of doctors and you have this information, many consumers would make an educated choice."

     --If the board decides a complaint justifies action against a doctor, it negotiates a "stipulation and consent order" with the doctor. These agreements require neither proof, nor the admission of guilt. The deals may limit a doctor's practice or require additional training or supervision. The evidence that leads to these agreements remains confidential.

Dr. Lord said stipulations are unfair to physicians because charges are made public that could never be proven. Lord has negotiated two stipulations with the board, in 1993 and 2000. He said in an April interview, "I don't agree that they're factual."

Board member Mazuzan defended the agreements' accuracy and effectiveness. "Stipulations have become extremely well-crafted legal documents. ... If we can go after somebody and get them to sign a stipulation to do certain things, we can accomplish the same thing as with formal charges."

Gloria Hurd, executive director of the Medical Practice Board, said the case of Dr. Annette Lynch proves the effectiveness of stipulatons. The complaint went to a full hearing that lasted 16 days. Lynch appealed her license revocation, and the state Supreme Court rejected the last week.

"The board spent thousands of hours on that case," Hurd said, "and the Attorney General's Office spent thousands of dollars on the appeal. A stipulation cannot be appealed."

Lois Tarczewski's experience with the medical board began with her 1992 complaint against Lord. The case closed two years later with a stipulation, so investigation materials were confidential.

The ruling required Lord to abide by a treatment plan he had established at a drug and alcohol addiction recovery center, and to submit to random drug tests. The decision made no reference to Tarczewski's case.

     --If the board resolves a case against a physician through a full, open hearing, the evidence becomes public.

Only 40 actions against doctors, out of Vermonters' 1,146 complaints since 1990, have received this complete airing.

"We can't know if the board's decisions are good or bad," Rep. Stephanie Bourdeau, R-Hyde Park, said, "because we don't see the details."

Punishment standards

The board has legal authority to revoke a doctor's license. Board members say they are guided about whether to do so by the Attorney General's Office.

Attorney General William Sorrell said Vermont law makes prosecuting doctors rarely worthwhile. To revoke a doctor's license, he said, the board must find that "gross negligence" has occurred.

The state Supreme Court has defined gross negligence as "failure to exercise even a slight degree of care and an indifference to the duty owed."

Markowitz said that standard is far too high. "Gross negligence is almost impossible to prove, even for cutting off the wrong leg repeatedly."

Board members say the standard is also hard to apply.

"Gross negligence is one of the hardest concepts," said Mazuzan, who has served seven years on the board. "I don't know if I've got it completely worked out in my head."

Attorney General Sorrell said the rate of prosecution is less important than whether doctors are disciplined properly.

"It could be the medical practice board, with the concurrence of my office, is giving away the store," Sorrell said. "Or, because the standard has been so stringent, it could be that you've got to have so much evidence to win, the issue isn't guilt but the appropriateness of the penalty."

The medical practice board does not penalize at the same rate or with comparable severity as other professional boards.

The Board of Nursing uses a "simple negligence" legal standard, with four significant results. First, nurses are punished at 4.5 times the rate doctors are. Second, an offending nurse builds a record of minor offenses that can trigger broader review.

Third, nurses are punished for a greater variety of offenses, such as viewing the medical records of people they are not treating. Fourth, nurses' public records contain more information for health consumers to consider.

Peer review

Eleven of the board's 14 members are health professionals. Secretary of State Markowitz said that makeup creates a risk of professional bias, especially because the board acts "as police, prosecutor, judge and jury."

Markowitz said the Legislature devised a better approach for professions that came under state regulation in recent years: A panel of the professional's peers reviews the facts, then makes a recommendation to an independent magistrate who determines the actual penalty.

"That way we receive thoughtful review without the risk of excessive peer empathy," Markowitz said. "It seems to be an effective model."

Karen Meyer, until recently the director of the Vermont Medical Society, said the board's makeup was essential to its effectiveness. Medical complaints are so complex, she said, they require expert review.

"We are one of the last countries to try malpractice cases before a lay jury," Meyer noted.

Richard Tarczewski dismissed the various reasons why people cannot learn more about their doctors. "It's like they have a code of silence."

Change proves difficult

The board has been a source of controversy for years, and thus a target for reform legislation. Yet efforts to change physician regulation have repeatedly stalled.

"The Legislature won't act on reforming professional boards," Dean said. "They all seem to be consumed with turf battles, instead of the quality of decision-making."

Dean called for reform several times. In October 1996, he said, "I want that fixed and I want that fixed now." In May 1997, he said licensing reform was one of his top priorities.

Former Rep. Jerry Kreitzer, D-Rutland, said politics -- not turf -- have been the problem. When he worked on regulatory reform in 1996, Kreitzer said, Vermont's 40,000 licensed professionals blocked change.

The medical practice board itself used a lobbyist in 1997 when lawmakers were considering folding the board into the Secretary of State's Office. The proposal failed.

Many of these issues will reappear in the upcoming Legislature, Bourdeau said, because portions of the Medical Practice Board law expire in 2002.

Whatever happens in the Statehouse, Dean said, "The bad apples need to be weeded out."

Cunningham, a retired pathologist, had this diagnosis for the sustained criticism: "The board is limited by the law under which we practice. The problem is that we haven't really defined what the good practice of medicine is, what a good doctor is."

The final say

Richard Tarczewski has his own definition. He has developed his own method of breaking "the code of silence." Whenever he sees someone in a cast or using crutches, he goes right over and asks, "Who's your doctor?"

If he receives the answer he fears, Richard tells the person what his family has been through.

"I lost my partner, my bedmate, my grandchildren's grandmother," Tarczewski said, his eyes brimming with tears.

"I miss her smell."