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Younes v. Nolan1/19/2005
ues that the Board is unconstitutionally creating an entirely new definition of unprofessional conduct by treating inadequate recordkeeping as unprofessional conduct. Appellant maintains that because "inadequate recordkeeping" is not specifically listed as a form of unprofessional conduct in § 5-37-5.1, a doctor cannot be subject to discipline on that basis, and as such, an application of § 5-37-5.1 "would run afoul of the due process clause of the Fourteenth Amendment to the U.S. Constitution."
Section 5-37-5.1 provides that "The term unprofessional conduct as used in this chapter includes, but is not limited to, the following items or any combination of these items and may be further defined by the regulations established by the board with prior approval of the director." Based upon this clear and unambiguous language, it is apparent to this Court that unprofessional conduct "is not limited to" the specific items listed in § 5-37-5.1 and can be fairly interpreted to include inadequate recordkeeping. Moreover, this Court finds Appellant's argument that it is unconstitutional to discipline him for inadequate recordkeeping when he was not aware that such conduct constituted unprofessional conduct defies common sense. Appellant should have been aware that failure to properly document a patient's medical condition is grossly negligent behavior and constitutes unprofessional conduct. The notion that "inadequate recordkeeping" has to be specifically listed as a form of unprofessional conduct in order to hold a physician accountable for such behavior is extremely disturbing and unsupported by the language of § 5-37-5.1.
While the Rhode Island Supreme Court has not had the opportunity to specifically address this issue, courts in other jurisdictions have held that the term "unprofessional conduct" is not unconstitutionally vague and gives sufficient notice to physicians. In Halter v. State of Alaska, Department of Commerce and Economic Development, Medical Board, 990 P.2d 1035 (Ala. 1999), the Supreme Court of Alaska held that failure to chart and document in specific patient files were grounds to sanction a physician for professional incompetence, despite the fact that there were no specific regulations about record keeping in the State of Alaska at the time of the physician's conduct.
Similarly in Bogdan v. New York State Board for Professional Medical Conduct, 195 A.D.2d 86 (N.Y. App. Div. 1993), the Court held that where there is a relationship between inadequate recordkeeping and patient treatment, the failure to keep adequate records may constitute negligence. In that case, a physician was charged by the New York Board with failing to document information in the medical records of patients. The court found that failing to document information in the medical records of certain patients was a ground for professional misconduct under the specification of negligence and sustained the finding of negligent conduct amounting to professional misconduct.
In the instant case, there was no reason for Appellant to believe that he would not be subject to discipline if he was negligent in the keeping of a patient's medical records. The fact that a physician has a responsibility to keep accurate and complete medical records for their patients is not a novel concept. Furthermore, here there is a state statute directly stating that a physician can be subject to discipline for negligence. Consequently, Appellant's argument that it is unconstitutional to consider inadequate record keeping a form of unprofessional conduct under § 5-37-5.1 is without merit.
Additionally, Appellant's assertion that he cannot be found guilty of unprofessional conduct because of the amendment to §
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