An Australian endocrinologist has been banned from performing breast examinations in Australia and is required to put notices up everywhere he sees patients after complaints of unexplained exams over 12 years led to action from the Medical Board of Australia (MBA).
Murray Gerstman, MD, an endocrinologist in the Kew area of Victoria, and an adjunct lecturer at Monash University, Melbourne, Australia, has been registered as a medical practitioner since December 1975.
However, a series of notifications to the MBA starting in 2006 but relating to cases as far back as 1995 culminated in a complaint by a patient's mother in October 2018 that he had performed a breast examination on her daughter without explanation.
The Victorian Civil and Administrative Tribunal (VCAT) found that, while there was no suggestion that Gerstman was being predatory or had performed the examinations for his sexual gratification — none of the notifiers perceived the touching as sexual in nature — it was not clear whether this latest examination could be clinically justified.
Gerstman was originally banned from all contact with female patients in February of this year.
Reducing this earlier blanket ban, the tribunal announced on June 26 that Gerstman "must not undertake any breast examinations of female patients."
References submitted to the tribunal were "universally favorable and supportive," painting a picture of a "highly regarded" physician, and the ruling is said to have caused profound distress to Gerstman.
It has been added to the website of the Australian Health Practitioner Regulation Agency (AHPRA) as part of the conditions of his registration, which is currently due to expire at the end of September.
Neither Gerstman nor Monash University responded to requests for comment from Medscape Medical News.
Doctor Must Use Sign Saying He's Not Allowed to Perform Breast Exams
What the new ruling means in practice is that Gerstman must place a sign at least A4 (approximately US Letter) in size and based on a template provided by the AHPRA stating that he must not undertake breast examinations.
In addition, the sign, which must be clearly visible in the patient waiting area or equivalent, as well as every place where Gerstman has contact with patients, should define "breast examinations", "female", and "patient".
Gerstman is also obliged to provide a declaration to the AHPRA once a month that he has complied with the conditions on his registration at all times.
The AHPRA is allowed, as part of the ruling, to ask for reports from senior individuals at each of Gerstman's places of practice, as well as access appointment diaries and patient clinical records.
The body may also contact, where relevant, Medicare, private health insurance companies and patients, and obtain practice billing data.
Queried Breast Exams Were Done "Without Informed Consent"
The case is the result of numerous notifications to the MBA over 12 years regarding breast examinations that Gerstman had conducted on seven patients.
The tribunal said that "although there were differences" between the notifications, the latest of which was received in 2018, "they each have a common component."
As noted in the ruling, they "appeared to have occurred without a proper explanation in advance as to the reasons for the examination and what he was going to do — and therefore without informed consent."
While the tribunal emphasized that there is "no suggestion" the conduct was "predatory or for sexual gratification," the patients said they were concerned that they did not know why the examinations had been performed.
They also reported not knowing "why they were required to undress for it," as well as feelings of "discomfort, in some cases distress," which led, "in most cases" to a decision to change practitioner.
No action was taken after an initial notification in 2006 relating to a consultation the year before, but the receipt of three notifications in 2013 relating to four consultations stretching back to 1998 did lead to regulatory action.
At the time, the MBA required Gerstman to undertake a performance assessment, which was completed in 2016 and found in the physician's favor. No further action was taken.
However, this was followed by another notification in 2016 relating to a consultation the year before, another in 2018 relating to consultations in 1995 and 1998, and another in October 2018 relating to a consultation that year.
It was this latter notification, given by a mother on behalf of her 20-year-old daughter, which initially led to Gerstman being banned in February 2019from treating or having any contact with female patients.
The woman's daughter had been admitted to hospital via the emergency department after being diagnosed that day with type 1 diabetes.
In front of the mother, Gerstman conducted a breast examination of the patient during his assessment, "without providing an explanation as to why it was necessary."
Gerstman told the tribunal he had performed the breast examination to check for diabetic mastopathy and had "asked and received permission" for the examination.
However, the reports add that "he agrees he did not explain in advance, or in retrospect, why he performed the examination."
The tribunal said that it "remains an open question" whether or not there was a "clinical justification for the examination" and it was not "not able to say one way or another."
"Our concern is that no explanation was given, and therefore no informed consent, and that looks like repetition of conduct that had been the subject of previous notifications and regulatory action."
At a later consultation, Gerstman asked the young woman to sit on his hand to show where she had been injecting herself, after she explained that she had been injecting insulin "into her backside." Gerstman told the tribunal that "he had some concerns with her injecting into that area because of the possibility of compression with sitting altering insulin absorption."
The MBA said this interaction was not "of the same concern" as the breast examination.
Blanket Ban Caused Profound Distress and Impacted Practice
With more than half of his patients' being female, Gerstman told the tribunal that the original decision to ban him from treating or having any contact with female patients "had a significant impact on his practice and on him personally."
Moreover, he said he has been "profoundly distressed" by both the notifications and the action taken by the MBA.
He recognized that he had "fallen short" in providing explanations of his actions and the reasons for them.
The tribunal said psychotherapy "has brought to light factors in his life which may have limited his ability to recognize the impact on female patients of his behavior and approach."
It was said that he had a "high moral drive" to do the best for his patients and not to miss anything, and that this "overzealous approach" was linked to the death of his father when Gerstman was a young child and a desire to live up to and honor his late father's achievements. His father was a pre-eminent ophthalmologist.
A psychiatric report said Gerstman had made "significant progress," but the physician himself recognizes he should "stay away from breast examinations."
The tribunal noted "if there were any suggestion" that his condition was "predatory or for sexual gratification," it would have reinforced the blanket ban.
However, it said there was a "real possibility" Gerstman had a "blind spot" when it came to breast examinations and they should therefore be avoided, while nevertheless allowing him to resume the treatment of female patients.
Gerstman v Medical Board of Australia (Review and Regulation) VCAT 830. June 26, 2019. Available here.
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