A former Kāpiti doctor who was found to have conducted unjustified clinical breast examinations has lost the fight to keep his name secret.
Doctor Ran Ben-Dom, who is still practising in the region, was found guilty of professional misconduct by the Health Practitioners Disciplinary Tribunal (HPDT) in November last year, but can only be named now due to an appeal.
The ruling related to complaints made from 2011 to 2017 regarding multiple women who said he suggested and carried out breast examinations despite them being there for unrelated health queries.
Included in the case was the doctor’s failure to record several breast examinations, asking a woman whether she knew she was very attractive and commenting “for your age, they’re [breasts] quite full” or words to that effect.
At the time eight women spoke of the behaviour, which continued despite the doctor promising his supervisors he would “utterly avoid” raising the topic of breast cancer prevention.
The doctor had appealed both the Tribunal’s decision and penalties, and had been allowed to keep working in the Lower North Island with his name secret due to the appeal.
Those penalties include a $5000 fine, the need for a chaperone during future breast examinations at his cost, as well as the $160,000 in costs that he was ordered to pay.
Judge Robert Dobson upheld the Tribunal’s decision and dismissed the doctor’s name suppression appeal.
Donald Stevens, the doctor’s lawyer, had argued permanent suppression should be granted because one of the man’s relatives was studying medicine and lifting it would severely affect the person’s reputation.
But Dobson said he did not find the grounds advanced by the defence for a suppression order to be compelling.
“I consider he has overstated the risk of any material adverse consequences for his adult children in terms of their career prospects, and similarly in respect of his wife’s career.”
All but two small details in the appeal were dismissed – but Dobson said these could not impact the “correctness” of the remainder of the Tribunal’s findings and the penalties imposed.
He said that the Tribunal made an error in requiring the man to have a chaperone when seeing female patients – with the cost falling on Ben-Dom.
“[The appellant] is to have a female chaperone present when seeing female patients for any breast examination and that chaperone must be a registered health professional, the cost of such service being a matter between the appellant and his then employer but in no circumstances being a charge on MCNZ.”
The ruling states the conditions imposed by the Tribunal will remain in place until April 2023.
The judge also reversed the Tribunal’s finding that the doctor should be sanctioned for failing to appreciate that the premises were empty and dark at the end of a consultation.
The doctor also faced a cross-appeal from the Professional Conduct Committee (PCC) – with the aim of getting him suspended for a year.
This, however, was also unsuccessful.
The PCC argued a period of suspension was necessary to protect the public by maintaining professional standards in the medical profession.
Lawyer Harriet Goodhew said during the cross-appeal, while the seriousness of his actions was evident in the Tribunal’s decision – this was not reflected in the penalties.
The PCC said it did not advance the situation as sexually motivated, however it went beyond a practitioner performing unnecessary examinations on other body parts.
“There was a sexual component, so the PCC says that despite the lack of sexual motivation, there is still an obvious disregard for the fact that these are sexual subjects. The breasts are a sexual organ.”
She said the man had an “I know what’s best for you” approach, which failed to consider each patient’s dignity.
Last year, Tribunal chairman David Carden emphasised normally a Tribunal would impose a suspension for this level of misconduct, however the doctor had already spent 13 months off work.
Stevens said the doctor approached some practices for work and would have been offered it had there not been limiting work conditions imposed on him.
Part of the defence’s case, which can only be reported now that the suppression order has been lifted, centred around cultural differences.
The defence argued the Tribunal ought to have taken into account cultural differences and the fact that the doctor speaks English as a second language with a heavy accent.
Ben-Dom is from Israel and was working in medicine there before coming to New Zealand in 2009.
His wife gave evidence of the cultural differences between life and the working conditions of a general practitioner in Israel, and the culture they encountered here.
The defence had argued it was relevant that Israelis are forthright to the point of bluntness in their communications.
But this was rejected, and Dobson said he wasn’t satisfied that the Tribunal had erred in not making concessions to the appellant on the account of any inadequacy in his familiarity with English or the ability to be understood.
The PCC claimed it was clear from the evidence that Ben-Dom had not used the time off work to reflect on his practice, and back then it was plain that he didn’t understand why it was so upsetting to the patients.
Last year Carden also raised concerns about the doctor’s denial of wrongdoing.
“He is still adamant it’s a good theory [self and clinician breast examinations] and he’s still adamant it should be practised in New Zealand.”
During the appeal, Stevens argued the doctor took a preventative approach to his practice, and that the clinician was justified in raising breast health and offering to perform breast examinations.
Clinician Breast Examinations (CBE) and Breast Self Examinations (BSE) were a focus in their argument, and the lawyer said while there are differing views on the effectiveness of BSE and CBE, they are not determinative one way or the other.
It took two weeks for the Tribunal to come to the original decision last year, but over a year for Ben-Dom’s details to be made public.
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