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Younes v. Nolan1/19/2005
mony related only to the standard of care applied in civil tort actions and, therefore, the Board erred in using Dr. Agatiello's testimony to make a determination regarding Appellant's conformity with "minimal standards of prevailing and acceptable medical practice." Accordingly, Appellant maintains that there was not substantial evidence on the record to support the Board's decision that Appellant committed negligent conduct under § 5-37-5.1(19). This Court disagrees.
Section 5-37-5.1(19) of the Rhode Island General Laws provides that the definition of unprofessional conduct encompasses:
"Incompetent, negligent, or willful misconduct in the practice of medicine which includes the rendering of medically unnecessary services, and any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing medical practice in his or her area of expertise as is determined by the board."
In the instant case, there was abundant evidence presented during the hearings to support the Board's conclusion that Appellant engaged in negligent misconduct in his care of Patient A. It is clear from the testimony of Patient A's son, Dr. D'Amato, and Dr. Agatiello that Appellant was grossly negligent in the documentation and keeping of Patient A's medical records and that he failed to document the lump of which Patient A complained. Moreover, Dr. Younes himself admitted that he did not touch under Patient A's jaw, didn't remember if he palpated underneath the ear, and had nothing in his notes regarding negative findings concerning Patient A's lymph glands and lymph nodes. Additionally, despite Appellant's contention that Patient's A's discontinuation of Prednisone after she left Appellant's care affected the size of Patient A's lump, the evidence in the record indicates otherwise. Dr. Agatiello was very clear in his testimony that the cancerous, large, hard, matted area would not have changed in size in the sixday period between June 3, 1999 and June 9, 1999, regardless of whether or not Patient A discontinued taking Prednisone.
Furthermore, Appellant's argument that subsection (19) of the statute cannot be used to charge negligent misconduct because that section is restricted to either "medically unnecessary services" or "a departure from minimal standards of prevailing and acceptable medical practice" is unpersuasive. The fact that the statute states that medically unnecessary services or a departure from minimal standards are included in incompetent, negligent or willful misconduct in no way restricts the statute to these two types of unprofessional conduct. The Appellant asks this Court to distinguish the word "includes" from the phrase "including but not limited to," in order to preclude the Board from considering other forms of negligent conduct when applying § 5-37-5.1(19). However, the interpretation which Appellant suggests is inconsistent with the plain and ordinary meaning of the word "includes." Black's Law Dictionary, Seventh Edition, states the following with respect to the meaning of the word include:
"vb. to contain as a part of something. The participle, including typically indicates a partial list . But some drafters use phrases such as including without limitation and including but not limited to -- which mean the same thing. Cf. NAMELY." BLACK'S LAW DICTIONARY 766(7th ed. 1999).
Based on the clear and unambiguous language of § 5-37-5.1(19), this Court finds that the Board did not err in finding that Appellant committed negligent misconduct under § 5-37-5.1(19). Constitutionality of Treating Inadequate Record Keeping as Negligence Appellant also arg
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