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Younes v. Nolan1/19/2005
5-37-5.1(28) enacted on July 17, 2003 is unavailing. The statutory amendment upon which Appellant relies changed the definition of unprofessional conduct from "medical malpractice" to a "pattern of medical malpractice." However, subsection (19) of the statute, under which Appellant was disciplined, was repeated verbatim in the statutory amendment. Furthermore, Appellant's unprofessional conduct occurred in 1999, the Specification of Charges were served in 2002, and testimony in the case began on September 11, 2002, all before the amendment of subsection 28 was enacted on July 17, 2003.
Appellant asks this Court to apply the 2003 amendment of subsection 28 to his 1999 negligence, claiming that ameliorative amendments to punitive statutes should be applied if the decision making body has not yet come to a final judgment. Here, however, the statute under which Appellant was charged was not a punitive statute. These hearings were not criminal in nature, but rather were disciplinary hearings designed to protect the public from doctors whose conduct has been deemed unprofessional. See Lisi v. Bashaw, 599 A.2d 1038, 1040 (R.I. 1991) (holding that disciplinary hearings dealing with an attorney's professional conduct were civil in nature rather than punitive). Accordingly, this Court finds Appellant's argument to be without merit.
Application of G.L. 1956 § 5-37-5.1(9)
Appellant further contends that at the time Patient A was treated in June of 1999 G.L. 1956 § 5-37-5.1(9) was the exclusive statutory or regulatory provision that addressed a physician's responsibilities with respect to maintaining patients' medical records. It is Appellant's position that because he was not charged with "willfully omitting to file or record" as is prohibited under § 5-37-5.1(9), he could not be charged under § 5-37-5.1(19) for such conduct.
Appellant's argument ignores the fact that he was not charged with willfully omitting to file or record but rather was charged with "negligent conduct" as is prohibited under § § 5-37-5.1 and 5-37-5.1(19). The Board, in accordance with the statute, found that unprofessional conduct included negligence with regard to inadequate recordkeeping. Thus, Appellant's contention that he could only be charged with inadequate record keeping under § 5-37-5.1(9) is unpersuasive, as it ignores the fact that Appellant was charged with negligence in recordkeeping as opposed to willfully omitting to file a record.
Impact on Patient Care
Finally, Appellant asserts that his recordkeeping did not impact patient care and, therefore, cannot serve as a foundation for the imposition of discipline. According to Appellant, the Board may not make a finding of negligent misconduct in the practice of medicine in connection with inadequate recordkeeping unless it first concludes that the improper record-keeping adversely affected patient care. Appellant maintains that because Patient A's treatment was not affected by Appellant's recordkeeping practices, the Board erred in imposing discipline on Appellant.
As stated previously, these hearings are civil in nature and are designed to protect the public from doctors who exhibit unprofessional conduct. Even if Appellant's inadequate record-keeping practices were not proven to have had a detrimental impact on Patient A's treatment, the question for the Board was whether Appellant's conduct was unprofessional. Here, the Committee's expert, Dr. Agatiello, testified that Appellant's inadequate documentation "caused a lot of difficulty for in looking at the transcript and looking at what was actually done in office." Moreover, the Board found that Appellant's "failure to properly assess the patient and
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