Charge Detail Summary

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File Number: Med19/445P
Practitioner: Dr Ran Ben-Dom
Hearing Start Date:

Hearing End Date:

Hearing Town/City:
Hearing Location:
Charge Characteristics:

Procedure - inappropriate (Established)


Consultations - inappropriate/inadequate
(Established)


Examination - inadequate/inappropriate
(Established)


Records - inadequate/inappropriate
(Established)


Additional Orders:

Name Suppression to Practitioner

Order for interim name suppression of the practitioner and any identifying details

Application for an order for a non-publication of the practitioner's name is declined

1020Med19445P.pdf1078Med19445P.pdf


Name Suppression to Complainant and/or Patient and/or client

Permanent order for non-publication of the names or particulars of the affairs of any of the patients, except for Ms Kenny

1078Med19445P.pdf


Other Suppression Orders

Permanent order for non-publication of the whole of information relating to the consultation Dr Ben-Dom had with Ms Y

1078Med19445P.pdf


Appeal Order:

Name Suppression to Practitioner
Outcome
The practitioner appealed the Tribunal's decision to the High Court and the order to publish the practitioner's name.  The High Court dismissed the appeal [2020] NZHC 3094.


Decision:

Full Decision 1078Med19445P.pdf


Appeal Decision:

(Quashed)
Outcome

The practitioner appealed the Tribunal's decision to the High Court and the order to publish the practitioner's name.  The High Court dismissed the appeal [2020] NZHC 3094.



Precis of Decision:

Charge

From 11-15 and 18-22 November 2019, the Health Practitioners Disciplinary Tribunal (the Tribunal) considered a charge laid by a Professional Conduct Committee against Dr Ran Ben-Dom of Waikanae, registered medical practitioner (the Doctor).

There were 9 particulars to the charge relating to 8 different women.  It was alleged that the Doctor acted in breach of his ethical obligations and accepted standards of practice in that:

  • During a consultation with a six-year-old boy he raised the topic of breast health with the boy’s mother and performed a breast examination on her which was clinically unjustified and inappropriate.
  • During consultations with patients about a non-breast related complaint raised the topic of breast health which was clinically unjustified.
  • He performed or offered to perform clinically unjustified breast examinations.
  • He performed breast examinations in an inappropriate manner.
  • He made inappropriate comments about the patient’s breasts and/or physical appearance and/or raised matters with the patients which were not appropriate.
  • He did not offer a chaperone or use a privacy curtain when performing a breast examination or performing a smear. 
  • He did not record the discussions about breast health and sexual matters or that he had completed a breast examination in the patients’ notes. He inaccurately recorded in one patient’s notes that he had offered her a chaperone and she had declined.
  • He breached a written undertaking to the Waikanae Health Centre that he would “utterly avoid” raising breast cancer prevention unless it was brought up by the patient and that a chaperone would be offered if breast health was discussed and always present during a physical examination.
  •  He offered to perform a cervical smear test which was inappropriate.

The charge alleged his conduct amounted to professional misconduct in that, either separately or cumulatively, it amounted to malpractice or negligence in relation to his scope of practice; and/or had brought or is likely to bring discredit to the profession.

Details of the Particulars to the Charge and Background

Particulars 5 and 7 were withdrawn.

In 2011, during a consultation with Ms N’s son, the Doctor raised the topic of breast health with Ms N. This was not clinically justified. It was inappropriate that the Doctor raised the topic in front of her son during his appointment. (Particular 1).

In 2012, during a consultation with Ms E about a throat complaint, the Doctor raised the topic of breast health and inappropriately performed a breast examination. This was not clinically justified. Ms E did not request this examination. The Doctor did not offer a chaperone. The Doctor also made inappropriate comments and examined Ms E in a manner which was not consistent with accepted medical practice. The Doctor inaccurately recorded in Ms E’s patient notes that he followed correct procedure. (Particular 2).

In 2012, during a consultation with Ms S about an upper respiratory tract infection and repeat prescriptions, the Doctor raised the topic of breast health and inappropriately performed a breast examination. This was not clinically justified. Ms S did not request this examination. The Doctor examined Ms S for an unreasonable length of time and spent more time on this than her presenting complaint. (Particular 3).

In 2014, during a consultation with Ms D about blistered eczema on her hand, the Doctor raised the topic of breast self-examination in circumstances that did not clinically justify this discussion. Ms D did not expect or request advice on breast health and/or the Doctor did not record any discussion about breast health in Ms D’s patient notes. (Particular 4).

On 15 August 2014, during a consultation with Ms N about stress, the Doctor inappropriately raised the topic of breast health and performed a breast examination. This was not clinically justified. The Doctor did not use a privacy curtain or modesty blanket during the examination. He also commented inappropriately on Ms N’s appearance. The Doctor further examined Ms N for an unreasonable length of time and asked an inappropriate question during the examination. The Doctor did not record the examination in Ms N’s patient notes. (Particular 6).

In 2015, during a consultation with Ms L about diarrhoea and a urinary tract infection, the Doctor raised the topic of breast health and offered to perform a breast examination. This was not clinically justified. Ms L did not request advice on breast health. The Doctor inappropriately asked Ms L to demonstrate breast self-examination in front of him when she had not requested advice on this. The Doctor did not record any discussion about breast health in Ms L’s patient notes. (Particular 8).

In 2015, during a consultation with a patient who was under 16 years old, Ms Y, about a throat infection, the Doctor raised matters with her and asked inappropriate questions which were not relevant to the consultation. The Doctor indicated to Ms Y that the questions were required for general health screening purposes. The Doctor did record this discussion in Ms Y’s patient notes. (Particular 9).

In 2016, during a consultation with Ms A about asthma, the Doctor inappropriately raised the topic of breast health. This was not clinically justified. Ms A did not request advice on breast health. The Doctor repeatedly offered to perform a breast examination. The Doctor asked Ms A’s daughter, who was present during the consultation, to leave the room. The Doctor did not record any discussion about breast health in Ms A’s patient notes. (Particular 10).

Matters came to a head when he was confronted by his employer about this, and he gave a categorical and written undertaking to refrain from the inappropriate and clinically unjustified practice.

On 24 May 2017, during a consultation with Ms Kenny about a repeat prescription, the Doctor inappropriately raised the topic of breast health and performed a breast examination. This was not clinically justified. The Doctor raised the subject of breast health without a chaperone present, in breach of the written undertaking to Waikanae Health Centre that he would “utterly avoid” raising breast cancer prevention unless it was brought up by the patient, and that a “chaperone nurse would be offered to be present during the discussion and always be present during the physical examination.” The Doctor also made inappropriate comments about Ms Kenny during the examination. No record was made of the examination in Ms Kenny’s patient records. (Particular 11).

In addition, also on 24 May 2017, during the consultation with Ms Kenny, the Doctor inappropriately offered to perform a cervical smear test. No chaperone was offered, and no record was made of the offer of a smear test. (Particular 12).

Overall Finding 

The charge was defended by the Doctor.

The Tribunal held that the established particulars and sub-particulars were a significant breach of standard, amounting to malpractice. The Doctor’s conduct was not clinically justified and was inappropriate. The Tribunal held that the conduct brought discredit to the Doctor’s profession. The conduct separately and cumulatively warranted disciplinary sanction to maintain standards in the profession and to protect the public.

Finding on each Particular

Particular 1 was established as malpractice.

The Tribunal found particular 2 to be partially made out. The Tribunal found the Doctor made inappropriate comments about the patient’s physical appearance and he examined her breasts in a manner that was inconsistent with accepted medical practice.  The Tribunal was satisfied that this established conduct amounted to malpractice. The Tribunal found the allegations relating to the chaperone were not established.

Particular 3 was established as malpractice in respect of the Doctor having performed the breast examination when not clinically justified and not requested. The Tribunal did not find it made out as to the allegation concerning the manner of breast examination.

The Tribunal found that particular 4 was partially established. The Tribunal found it was malpractice on the Doctor’s part to raise the topic of breast self-examination in circumstances that did not clinically justify this discussion and was not expected or requested. The second part of the particular, relating to note-keeping was found not to be made out as malpractice.

Particular 6 was established as malpractice.

Particular 8 was established on all sub particulars as malpractice.

Particular 9 was established in relation to the inappropriate questions and discussions and that the practitioner did not make a record of these discussions.  It was not established on the facts that he indicated to her that the questions were required for general health screening.

Particular 10 was established as malpractice.

Particular 11 was established as malpractice.

Particular 12 was not established as the offer of a smear was declined.  Therefore, it was not necessary for the Doctor to offer a chaperone.  

Penalty

The Tribunal:

  • Censured the Doctor;
  • Fined the Doctor $5,000.00
  • Ordered conditions on the doctor’s practice for a period of three years
  • Ordered the Doctor to pay costs of $160,000.00

Appeal

The Doctor appealed the Tribunal’s decision to the High Court. The appeal was dismissed except for an alteration of a condition imposed (Ran Ben-Dom v PCC [2020] NZHC 3094).

A cross appeal by the PCC against the Tribunal’s decision not to impose a period of suspension was also dismissed.