Criminal prosecution of healthcare practitioners is very rare and even more rarely successful, write Donald Dinnie (director) and Lisa Kriegler (associate) of the Norton Rose Fulbright SA law firm.
They write:
In March 2025, the High Court acquitted a retired paediatric surgeon of murder. The charges flowed from the post-surgery deaths of three children.
Murder requires a degree of subjective intention. South African Law recognises three forms of intention: direct intention (dolus directus, where the accused aims to achieve a particular unlawful result), indirect intention (dolus indirectus, where the accused foresees the unlawful consequence as certain or substantially certain to occur), and conditional intent (dolus eventualis, where the accused foresees that the unlawful consequences of their actions might occur but nevertheless proceeds, with the result that the foreseen consequences arise).
The state attempted to establish intention in the form of dolus eventualis. This required the state to prove that the surgeon subjectively foresaw the possibility of harm ensuing from his conduct and recklessly reconciled himself to the possibility of harm occurring.
The state relied on inferential reasoning to argue that the accused knowingly performed unnecessary surgery to compensate for an earlier financial loss. The surgeon’s subjective evidence was that, based on the medical evidence available to him, he genuinely believed each surgery was indicated and necessary. The evidence showed that his financial position was sound.
The court rejected the state’s expert witness’ testimony that the surgeries were not required, on the basis that his evidence was inconsistent and unreliable. It accepted the accused’s submissions that he believed the surgeries were medically necessary.
As the state had failed to establish intention, the court dismissed the charges of murder.
It then considered whether the accused could be found guilty of the lesser charges of culpable homicide.
Culpable homicide requires objective proof of negligence for a successful conviction. Negligence is tested against the criteria of the reasonable person.
In the medical context, the test is whether the reasonable doctor, in the same circumstances, would have foreseen the possibility that the patient could die and whether the reasonable doctor in those circumstances would have taken particular steps to guard against this consequence.
The court found that there was no evidence to show that the accused had deviated from the standard of the reasonable paediatric surgeon in the circumstances and dismissed the charges of culpable homicide.
Criminal prosecution of healthcare practitioners is seldom successful.
S v Beale (SS10/2021) [2025] ZAGPJHC 209 (4 March 2025)