An ophthalmologist has lost a claim dispute over $329,233 in legal fees after a patient complained he massaged her breasts and asked inappropriate questions. 

The NSW-based doctor’s registration as a medical practitioner was suspended for three months in March last year, and he was ordered to complete an ethics course, practice under indirect supervision, maintain appropriate professional boundaries, and stay “within his scope of practice”. 

In December 2017, the patient lodged a complaint with the Health Care Complaints Commission (HCCC) and reported the matter to the police.  

The allegations were categorised as "sexual boundary – indecent assault" when the HCCC brought proceedings against the doctor in the NSW Civil and Administrative Tribunal (NCAT), which in November 2022 ruled he was guilty of professional misconduct. 

The doctor admitted his conduct was inappropriate with respect to the breast and abdomen examination under clothing, and asking questions regarding pap smears. 

NCAT said those failures demonstrated judgment and care significantly below peer professional standards and he "must or should have realised his breast examination skills may be deficient, and that other practitioners would be better skilled". 

He did not obtain informed consent to carry out the breast examination, and it had a significant impact on the patient and could have long lasting impacts on her mental health, NCAT said. 

The doctor held medical indemnity insurance with MDA National Insurance, which agreed to advance him legal costs before the outcome but reserved the right to seek recovery of those costs if a finding of professional misconduct was made against him. 

Due to subsequent non-payment, the insurer refused to offer renewal terms for the current financial year. 

The doctor told the Australian Financial Complaints Authority (AFCA) no “sexual misconduct” findings were made but AFCA ruled MDA was entitled to seek recovery of costs as there was a “professional misconduct” finding. 

"The adverse costs orders have arisen out of proceedings concerning alleged sexual misconduct. They are therefore excluded under the policy terms,” AFCA said. 

"The insurer repeatedly informed the complainant from the date of notification that he would have an obligation to repay costs if a finding of professional misconduct was made.” 

Under section 52A of the MI Act, a medical indemnity insurer can only refuse a professional indemnity policy with a medical practitioner in limited specified circumstances. One of those circumstances is that the practitioner "failed to comply with a provision of the contract".  

AFCA said the doctor had failed to comply with a policy provision as MDA requested legal costs payment on several occasions and offered a payment plan, and also warned non-renewal of the policy was a potential outcome if the debt was not paid. 

"The insurer complied with the policy in seeking recovery of legal costs and refusing to pay costs orders. It also complied with the MI Act in refusing renewal," AFCA’s ruling said. 

"While NCAT was not satisfied the complainant intended to act in a sexual way, the basis for the professional misconduct finding was nevertheless the way he acted. The finding cannot be separated from his unjustifiable breast examination. The allegation of sexual misconduct, the acts the subject of that allegation and the finding of professional misconduct are all intrinsically linked." 

See the ruling here.