In a blow to Cape Town’s Life Vincent Pallotti Hospital, the High Court has refused it leave to appeal against a ruling that restored the practising and admission privileges of an oncologist accused of being racist, homophobic and sexist, reports News24.
However, the group says it is determined to forge onwards with its legal battle against Dr Louis Kathan and will seek further legal avenues after its second court defeat.
Kathan, who has a special interest in neuro-oncology and treats patients with both cancerous and non-cancerous brain tumours at his private practice at the Pinelands hospital, was removed from his position as Life Healthcare Southern Africa’s chief medical officer in 2023 after numerous allegations of discriminatory behaviour and speech.
An internal investigation found that he had made racist, homophobic and sexist comments, and he was also found guilty of making sexually inappropriate remarks to female staff.
Two employees in the radiology unit who resigned said Kathan made working there intolerable.
But in his court papers, he denied the allegations, saying that as “a gay man of colour himself”, his utterances had been taken out of context and were not intended to be discriminatory.
At a disciplinary hearing, the otherwise lauded doctor – responsible for bringing “cutting-edge technology in cancer treatment” to the hospital – was found guilty of unfair discrimination, harassment, sexual harassment, bullying and creating a hostile working environment.
The hospital consequently terminated his employment contract.
The termination, however, did not automatically revoke his separate entitlement to practise as an independent oncologist, and this decision was only made about five months later.
Kathan initiated legal proceedings to review and set aside the hospital’s termination decision, arguing that the hospital failed to implement a mandatory rehabilitation plan under its own conduct policy.
Last year, Judge Derek Wille ruled that the hospital and group was “not entitled to blow hot and cold simultaneously”.
Having elected not to suspend or terminate Kathan immediately under its emergency privileges policy, they were bound by that choice and could not retroactively enforce summary termination.
The hospital’s decision to terminate his admission and practising privileges was declared invalid.
In seeking to appeal the finding, the group argued that its internal policies were non-binding, discretionary guidelines rather than constraints: they could be used against doctors but not against the hospital group, thereby restricting its decision-making.
But Wille this week rejected that argument, finding that the policies were binding and had to be read together, describing the hospital as indulging in “an impressive exercise in judicial gymnastics”.
It could not be used to circumvent the hospital’s conduct management policy, he maintained.
This was because it did not permit termination as a first response in ordinary circumstances; instead, it required the hospital to consider progressive steps and a rehabilitation plan unless the practitioner’s conduct posed an imminent danger or constituted sufficiently serious misconduct to justify immediate action.
“The obligation” to implement rehabilitation was not discretionary, Wille found. The judge also reaffirmed that the hospital’s delay in enforcing the decision was significant.
Life Healthcare had decided to terminate Kathan’s privileges on 1 August 2023 but delayed the decision’s effect until 31 December 2023.
The hospital, the judgment read, had “made an election” by choosing a lengthy inquiry process rather than immediately suspending Kathan, and it was bound by that choice.
Avanthi Parboosing, the chief people officer at Life Healthcare, told News24 the group “respectfully disagrees” with the judgment and intended to “prosecute all avenues of appeal against the court’s decision, which we respectfully believe is incorrect”.
Meanwhile, an application challenged the decision to terminate Kathan’s employment on the basis that it was “irrational and unlawful”.
The separate case, brought by 16 cancer patients who sought to continue receiving care from Kathan at Vincent Pallotti, is set to be heard by the Supreme Court of Appeal.
See more from MedicalBrief archives:
Controversial Cape Town oncologist may continue to practise, rules judge
Judge rules in favour of ‘miracle doctor’ and against hospital
Cancer patients granted interdict to keep dismissed oncologist at Cape hospital