Tuesday, 18 January, 2022
HomeA FocusJailed gynae whose conviction was reversed by ConCourt ends silence

Jailed gynae whose conviction was reversed by ConCourt ends silence

Dr Danie van der Walt, the first South African doctor jailed for the death of a patient and who served eight months of a five-year sentence before being released on parole — only to have his sentence overturned by the Constitutional Court — has broken his silence in an interview with Naledi Shange of TimesLIVE.

Van der Walt was jailed in 2019 after a tortuous 14-year legal process following the death of a patient in 2005.

The verdict and sentence sparked an ongoing campaign by medical and healthcare professionals, urging the justice minister to change medical negligence laws and to review the criminal prosecution of doctors. He had unsuccessfully appealed before the Mpumalanga High Court, and leave to appeal to the Supreme Court dismissed, before being imprisoned at the Witbank Correctional Centre. Van der Walt, who spent his 68th birthday behind bars, was released on parole but later had his conviction overturned by the Constitutional Court on a procedural technicality.

Earlier this month, as reported in MedicalBrief, the Medical Protection Society (MPS), among others, wrote to Justice Minister Ronald Lamola asking that he permit a review into laws on culpable homicide where doctors are concerned. They said jailing doctors for medical negligence was too severe, and medical mishaps should rather be used as teaching opportunities to prevent future fatalities.

Van der Walt, of Emalahleni, told Shange of TimesLIVE in an interview that he had been “absolutely devastated” because suddenly he was a criminal, “after serving the community for more than 40 years, seeing more than 40,000 patients and delivering more than 8,000 babies, where I had never had a problem”.

“They didnʼt even say sorry. I just got a letter from the court saying they were in the wrong, it was unfair procedure and has been wiped off the table,” he said.

The case stemmed from 2005 when he delivered the daughter of Pamela Daweti, 23. After the delivery she bled severely, at which time she was under the care of nurses. Van der Walt was blamed for, among other things, failing to return to the hospital to attend to her. Daweti died a day later.

After a drawn-out process, beginning at the Health Professionals Council of SA where he paid a R10,000 fine, and then followed by legal proceedings, Van der Walt said his case had led to fear among many doctors and changed the face of medicine.

“Doctors are reluctant to see a patient, especially an emergency case, because if something goes wrong, which can happen in any medical setting, they might be called before the courts,” he said.

Van der Walt said patients were paying the greatest price for doctorsʼ fears about prison. This was because doctors were, at times, no longer relying on their ability to make a clinical diagnosis but were sending patients for unnecessary procedures to “cover” themselves.

“Instead of a consultation fee and a prescription, patients are sent for an X-ray and blood tests. The cost of medical assistance rises because doctors are very scared to apply their normal medical skills to make a diagnosis,” he said.

Regarding the case that put him behind bars, Van der Walt believed he was not at fault.

“I did the right thing and believed that throughout all the sessions in courts, someone would give me a chance to speak and realise what happened and why, and also see that anything in medicine can go wrong, and it was not necessarily due to negligence,” he said.

The letter sent to the justice minister earlier this month, which apart from MPS was also signed by the SA Medical Association (SAMA), the Association of Surgeons of SA, the Federation of SA Surgeons, the Radiological Society of SA, the SA Medico-Legal Association, the SA Private Practitioners Forum, the SA Society of Anaesthesiologists and the SA Society of Obstetricians and Gynaecologists, said patients or families seeking accountability from doctors should be given alternatives to the courts.

The group said the current law made it too easy to attribute healthcare-related deaths to doctors even though fatalities were sometimes unavoidable.

Of the 500 SA doctors surveyed, one in two considered leaving the profession for fear of being prosecuted, while 88% were concerned about facing an investigation after an adverse patient outcome, according to the MPS.

Dr Graham Howarth, head of Africaʼs medical services at MPS, said members understood that doctors needed to be accountable, but jailing them was too severe.

“The importance of a learning environment cannot be over-emphasised, though sadly the criminalisation of doctors is the antithesis of a learning environment,” he said. “We need to develop a system where doctors are held accountable, but where we learn from adverse incidents so as to preclude recurrence.”

Though there are very few pending culpable homicide cases against doctors, SA Medical Association president Angelique Coetzee said: “One culpable homicide case against a doctor is one too many.”

Van der Waltʼs case and that of Dr Peter Beale — a Johannesburg doctor who will, in February 2022, answer murder charges after the death of 10-year-old Zayyaan Sayed after a routine acid reflux procedure in October 2019 — are among those that prompted the MPS to intervene.

Zayyaanʼs father, Mohammad, said he could not understand why doctors werenʼt held to the same standard as other professions.

“If you are found wanting, you should be trialed, just like a policeman who discharges his firearm recklessly,” he said.

“Where is the law governing doctors when even at the age of 78 they can still do intricate procedures? At the age of 65 or 70 doctors should be having their licences revoked because with age come certain limitations,” he told TimesLIVE. “No one is beyond reproach when it comes to life, especially the life of a child.”

Lamolaʼs spokesperson, Chrispin Phiri, said the minister was studying the letter.

judgment van der walt

 

TimesLIVE article – Gynaecologist who was jailed for patient’s death speaks (Open access)

 

Call for SA Law Reform Commission review on criminal charges against doctors

 

See more from MedicalBrief archives:

 

Gynaecologist’s jail sentence for negligence a worrying precedent — SASOG

 

High Court rejects gynae’s appeal against 5-years’ jail for deadly negligence

 

Gynaecologist’s jail sentence for negligence a worrying precedent — SASOG

 

SA Law Reform Commission outlines sweeping medical negligence changes

 

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