Breast exam ban for endocrinologist who failed to obtain informed consent

A highly regarded endocrinologist has been banned from performing breast examinations on female patients after a tribunal found he was failing to obtain informed consent.

Dr Murray Gerstman of Melbourne was temporarily banned from seeing female patients in February after the Medical Board of Australia acted on a series of notifications about his consultations over two decades.

There was no suggestion that Dr Gerstman’s actions had any sexual or predatory intent, according to the Victorian Civil and Administrative Tribunal, but it concluded that he appeared to have a ‘blind spot’ when it came to explaining to patients why he was performing a breast exam.

Dr Gerstman’s examinations may have been appropriate for female patients receiving hormone replacement therapy or suspected of diabetic mastopathy, it said. They noted he sought permission from patients before carrying out an examination, but several felt uneasy when no explanation was given to them as to why the exam was being done and what it would involve.

In a hearing held on 27 May 2019, the tribunal noted there had been several notifications received about Dr Gerstman’s consultations since the 1990s, with patients “reporting concerns including not knowing why he had conducted a breast examination and why they were required to undress for it, a feeling of discomfort, in some cases distress, and in most cases a decision to change practitioner. “

A performance review conducted in 2016 found there was no sexual element to the examinations, but that Dr Gerstman appeared to be ‘overzealous’  in his approach.

An assessment by a psychiatrist on an AHPRA panel found that Dr Gerstman has shown “a high level of moral drive to do all he can for his patients and a determination to make no mistakes – to miss nothing.”

He has since undergone psychotherapy and education in communication, professional boundaries and clinical management, which had given him insight into his behaviour.

“Dr Gerstman held the belief that the patient should just trust him to know what he was doing, he realises now that there is a difference between his intent and the impact of his approach,” the tribunal heard.

Character references from colleagues had been universally favourable and supportive, indicating that he was highly regarded. The tribunal also acknowledged that the ‘immediate action’ taken in February 2019 by the Medical Board to ban him from seeing female patients had a devastating effect on Dr Gerstman and his family.

However the tribunal said it had to put the potential impact of his practice on patients as its primary concern, noting that some women said the unexplained examinations had have a profound on them, and sat uncomfortably on their minds for years.

While there was no concern that he was unsafe as a medical practitioner, the tribunal recommended that he should not undertake breast examinations on female patients, “together with appropriate notification to senior persons in each place of practice, and a visible copy of the condition in each place of private practice, would address protective concerns, without disproportionate damage.”

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