Breaking the Medical Malpractice Code of Secrecy

The story began in February 2001, with a brief news item in a tiny newspaper downstate. The State of Vermont Board of Medical Practice had ruled that a local orthopedic surgeon—despite several complaints against him—was allowed to continue to practice.

At The Burlington Free Press, we’d written about the state’s physician oversight panel before. A 1991 editorial slammed the board for allowing an ear, nose and throat doctor to keep his license after he was convicted of having sex with a minor in his examining room. In 1995, an editorial again criticized the board, this time for taking five years to act against a psychiatrist who counseled patients to cross-dress, ordered them to perform her office tasks, and overmedicated them to the point of seizures. In these editorial criticisms, the newspaper had treated those cases as rare instances of laxity by an otherwise diligent watchdog.

The small news story appeared to be another such anomaly. But was it?

Breaking Through the Secrecy

My editor and I decided to pursue this question. What we concluded—after eight months of reporting—was a resounding no. What had happened with this surgeon—and the other doctors we found—exemplified problems in the medical profession and in state law designed to protect the public from malpractice. The consequences of this lack of vigorous oversight, we learned, could be measured in body parts permanently damaged, in years of suffering, and in lost lives.

Nor was this only an issue of local concern. The Institute of Medicine at the National Academy of Sciences has found that throughout the nation nearly 100,000 deaths occur annually due to medical errors. The institute identifies lack of physician accountability as a major cause.

The signal that a larger story might lie beneath the surface came early in the reporting. Vermont’s regulation of physicians was surrounded by secrecy. Everywhere we turned—to the courts, regulators, health insurers, even doctors themselves—the answer was the same: State law prohibited public disclosure of physicians’ performance. “The public could easily misunderstand,” the head of the state’s health care quality improvement panel told us. “Can you imagine what would happen if people knew a certain surgeon had a high malpractice suit count?” In fact, we could imagine: Such information would probably help medical consumers make more informed choices.

Our journalistic challenge was to break through the secrecy. Although I did the reporting and writing, assembling and shaping the project was a genuine team effort with my managing editor, Geoff Gevalt. We began by filing a public records request of the board’s findings against the orthopedist. In those papers, the catalog of complaints against this doctor was staggering: surgeries on the wrong body part, patients permanently marred by surgical errors, even deaths due to post-surgical complications that he allegedly ignored. However, no patients were identified and details were scant.

We then requested the rest of the doctor’s records. State regulators provided minimal paperwork, with many sections redacted. Then we requested information from the medical practice board about its investigation of the case—the names of complaining patients, evidence, minutes of the board’s deliberations. Again, the board’s answer was an unapologetic no. Staffers at the board made little effort to conceal their indignation that we would presume to make such a request.

We also turned our attention to examining the records of other doctors and other cases. With each, our investigation pursued three themes that we saw developing through our reporting:

• Substandard doctors could practice in Vermont with impunity.


• The oversight board was unaccountable to the public.


• State laws prevented health consumers from obtaining basic information about a doctor’s competence.

Soon, it became apparent that this story would not be easy to tell. Though we’d uncovered many anecdotes, we’d been able to secure few documents to support what people alleged. By law, patient records are confidential. And doctors’ conduct is guarded by peer review—a system of oversight by physician teams, which is confidential in all 50 states. (As we would learn, the secrecy in Vermont was tighter than in other states.) The medical culture, too, thrives on collegiality and an ethos of maintaining secrecy.

Telling the Story

We started interviewing critics of the board, state officials whom Vermonters had contacted over the years when they felt that their complaints about a doctor had been ignored. They confirmed that we were on the right track. Phone calls we made to malpractice attorneys provided people who would detail their misfortunes, but these cases did not address the larger issues. Often, too, settlements reached in lieu of a court finding involved a legal pledge of silence.

Finally, a source provided a tip that broke the story open for us. The tip was that an unnamed patient of the orthopedist had died on the same day the board ruled that the doctor could keep practicing. We collected a month’s obituaries from every newspaper in Vermont and western New Hampshire and started calling surviving family members.

That was how we found Lois Tarczewski. A decade previously, she had slipped at work, banged her elbow, and couldn’t shake the pain. It turned out she’d injured her upper spine. She was scheduled for surgery at the Dartmouth-Hitchcock Medical Center when the local surgeon convinced her to have the operation at his tiny hospital closer to home.

What she didn’t know was that the surgeon at her local hospital had already been sued twice, losing one case and settling the other out of court. She didn’t know that he had performed her surgery only once before. She did not know he had a drug problem.

Her operation went awry. She survived, thanks to emergency surgery at Dartmouth later that day. However, she spent 10 years in constant pain, struggling to walk, and living tethered to an oxygen tank. On the day the Vermont Medical Practice Board allowed her surgeon to stay in practice, she died. Had she known her doctor’s past, Lois’s husband said again and again, she would have gone somewhere else. Instead, she was a victim of what he called “the code of silence” in medicine.

Seeking to break that code, we interviewed scores of other patients, doctors, policy gurus, malpractice lawyers, and state officials. We then assembled a three-day series to reveal the problems we’d found and, before publication, we gave what we intended to publish to our newspaper’s lawyers for legal review. As a reporter, that step in the process made me apprehensive. I worried that fears of possible legal action against the newspaper could compromise the story’s vigor.

Instead the opposite happened. This legal review proved to be the story’s salvation. The lawyers echoed my editor’s concern that interviews were not enough for this story. We needed documents to provide a stronger foundation, for legal protection, and for missing details. We needed to report much of the story all over again.

Chasing the Documents

Again, we began to chase the documents.

Having exhausted what state regulators would provide, we looked elsewhere. For example, we dug through records in several county courts in Vermont and in two other states. In the process, we uncovered a dozen lawsuits against this surgeon—his record proved worse than we’d known. Depositions in these lawsuits provided incredible, wrenching detail. We obtained thousands of pages of documents in Tarczewski’s case. Those thousands of pages included her own wrenching deposition. Four pages of that testimony described in chilling detail the nature of her daily pain. We also obtained the testimony of her doctor, an examination so complete we learned the name of the surgical instrument that had injured her spinal sheath and the exact minute that the puncture occurred.

Armed with this detail, we were able to secure a three-hour interview with the surgeon. He struck me as a compelling person who seemed sincerely interested in helping to heal people. With his lawyer present, the doctor also admitted that he had struggled with addiction to medication (Percocet) and with alcohol abuse.

The series went through several rewrites and then its publication was delayed by the events of September 11th. By late November 2001, the articles were ready for publication, and this time the lawyers suggested only minor changes. On December 9, 2001, the first of three parts of “Code of Silence” was published.

Other Doctors, Other Abuses

Our reporting had unearthed other physicians whose records of malpractice, we believed, should be accessible to the public. Earlier in the fall, we had requested documents from the state about these doctors, but the board had again turned us down. At that time, our next step would have been to take the medical practice board to court. Instead, we decided to complete work on the Tarczewski story first.

We did not forget the other doctors. On the last day of the series’ publication, we refiled document requests for every doctor who’d been disciplined by the board. We also filed a separate request on a particular surgeon.

Publication of our series—and immediate public reaction to it—dramatically changed the board’s behavior. Granted, the board challenged our accuracy in letters to the editor and in mailings to the legislature. But board officials also admitted that they were worried about what else we knew and had not yet published. Fearful, the board exercised its option under state law and requested an extension to delay answering our requests for several weeks.

At 4 p.m. on the day the board’s extension was to expire, it faxed us a remarkable document. Instead of providing the information we’d requested about that surgeon, the board sent us a copy of a set of charges it had filed against him. The accusations ranged from numerous surgical errors to threats to kill a hospital president. A prominent state official later told us that these charges, 27 counts in all, came about entirely as a result of our insistence on obtaining records.

The story we published about this second surgeon created an even louder public outcry. And, following that, we renewed our request for the records of every physician disciplined in Vermont during the past five years. The state dragged its feet, finally capitulated, and sent us a photocopying bill for $980. (We successfully fought the fee and got it down to $170.)

We combed those records. In them, we found a doctor charged with sleeping with a patient in her hospital bed the night before operating on her. We found a hospital that routinely lacked an emergency surgeon because so many of its doctors had been sanctioned for misconduct. We found a physician who wrote herself a prescription for 18,000 Percocet. Though the Drug Enforcement Agency raided her building, Vermont regulators approved her return to work, in the same office, 108 days later.

As the cases mounted, we also found patterns:

• Psychiatrists, while only 11 percent of doctors in Vermont, received 39 percent of the discipline. Nearly all cases involved sexual relations with patients. The state’s psychiatric leaders, far from being defensive, were aghast that they had not known there was a problem. They pledged to police their profession vigorously.


• One-sixth of the disciplined doctors practiced at one hospital, the state’s third smallest. A local legislator said the rural health center appeared to hire whomever it could get.


• The board had resolved 93 percent of Vermonters’ complaints about doctors in a manner that kept even the existence of the complaint out of the public record.

We expanded our research to look at federal jurisdiction. That, too, proved fruitful: Two hospitals in Vermont had decided to let their national accreditation lapse. Two other hospitals had committed two-thirds of the state’s violations of federal laws for handling radioactive medical materials.

Each successive story reinforced the point that Vermonters could learn more about the past performance of their plumber or hairstylist than they could about their doctor. A woman whose husband died after a botched hernia surgery was never told that anything had gone wrong. A pregnant woman given 32 times the prescribed dose of radioactive iodine was never informed of the medical error.

We ran a side-by-side comparison of Internet information available about a Vermont doctor and a New York doctor. The disparity was undeniable. Gradually, as information surfaced in our stories, the positions of health leaders began to shift. The state doctors’ association said public openness would bolster patient confidence. The state’s health care improvement organization offered to testify on physician quality. Then-Governor Howard Dean, himself a doctor, called for reform.

Friends and Foes

These stories promptly won friends to this cause. Only 21 days after the initial series began, lawmakers proposed a bill overhauling medical regulation in Vermont. It passed four months later. Meanwhile, statewide officeholders such as the secretary of state and attorney general called for reform. Many readers phoned and e-mailed, too, to share their frustrations about medical incompetence and laws that kept them uninformed.

Critics of our coverage proved equally galvanized. Staffers at the Vermont Medical Practice Board attacked our accuracy. Several lawyers whose specialty was defending doctors demanded retractions and apologies. Some attorneys ghostwrote scathing op-eds under the name of board members. They attacked the series and its reporter in letters sent not only well up our corporate chain of command but also to every legislator. One lawyer even made a public records request of certain officials’ schedules, then circulated a letter detailing each interview with the Free Press and presenting it as evidence of collusion.

We treated every criticism seriously. We recontacted sources and again verified their statements and positions. The series held up under this pressure. After more than 90 stories and 15 editorials were run on this topic, there’s been need for only one correction to be published. It clarified information provided to us by a national consumer advocacy organization, which we had reported correctly but which we felt could have been misleading.

Politically, the attacks seemed to backfire. Their severity—and personal nature—seemed only to persuade lawmakers that our investigations were hitting a worthy target. The Free Press also received numerous legal threats, and a doctor filed two complaints in court. The first concerned our reporting that his license had been suspended. This information appeared in a story that contained basic facts quoted from a public document. His case was dismissed. When his name surfaced again, in the story about one-sixth of disciplined doctors practicing at one hospital, we didn’t hesitate to name him. He sued again. The case is ongoing.

Lessons and Reforms

The “Code of Silence” project provided many lessons for me, as a reporter:

• It is human nature to treat secrecy with skepticism; in this case, concealment proved an accurate guide to keep the reporting going.


• Early on we made a commitment to the public’s right to know, and that resonated not only with readers but also with lawmakers.


• Once we began publishing, we received many valuable tips from people who had long kept quiet; that instructed us to stay on the story, where we remain nearly two years later.


• A newspaper must commit itself early on to print the whole story regardless of whom it offends. Or, as one reader, a retired hospital chief executive, put it upon reading the series, “That’s why God invented the First Amendment.”


• Finally, documents ultimately were the key to getting the initial series focused and published. The documents—rich in detail and protected by law—allowed us to write with clarity and strength.

These stories led to comprehensive reform of medical regulation in Vermont. Doctors are now held to the same standards of conduct as nurses, mental health counselors, radiation therapists, and many other medical professionals. As important, Vermonters now possess far better tools to inform themselves about a doctor’s past: Any malpractice losses or settlements, any state discipline, any criminal convictions must be made available to the public. Since most doctors have exemplary records, excellence will be as readily discernible as difficulties.

Several doctors lost their licenses in the course of our reporting, and the director of the regulatory board resigned. Public complaints about doctors doubled in one year, and regulators cut the average investigation duration in half. When the governor held a ceremony to sign the reform bill into law, his select invitees included the Tarczewski family. These humble, blue-collar folks, who had never been in the state capitol before, heard their praises sung for having the courage to share their tragedy in order to bring about justice.

What happened to the orthopedic surgeon whose case trigged our investigation? Two weeks after the public information law took effect, he closed his practice.

Stephen Kiernan is a reporter at The Burlington Free Press in Burlington, Vermont. “The Code of Silence” and subsequent coverage of medical issues won a George Polk Award and the Joseph L. Brechner Center for Freedom of Information award, among others.