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KZN surgeon’s murder charge triggers new alarm among doctors

As predicted by medical and legal experts, South African prosecutors appear to be increasingly inclined to bring murder charges against doctors whose patients die following failed treatments, writes MedicalBrief. This week, Dr Avindra Dayanand appeared in a Richards Bay court to face a murder charge following the death on the operating table of one of his patients.

Publisher’s Note: This MedicalBrief article may be freely republished with acknowledgement to MedicalBrief and a backlink to the original article.

Previously, as is mostly the practice internationally, the questionable death of a patient would set off a complex process to determine its cause and degree of negligence, if any, involved. There would be a post mortem and inquest hearing, often with medical experts from both the aggrieved family and the medical practitioner involved.

Depending on the findings, the local oversight equivalent of the Health Professions Council of South Africa would investigate and determine whether a disciplinary hearing should be held. Only then, and very rarely, would this lead to a police investigation and a homicide charge.

In South Africa, however, murder charges increasingly have been laid against surgeons by families of the deceased. Court proceedings often proceed before even a post mortem.

Daynand charged over death of patient following surgery

The charges against Dayanand follow the death of a patient, Monique Vandayar, who was referred to him in 2019 and died after undergoing a surgical procedure. The Sunday Tribune reports that an inquest docket was opened, but no further action was taken until Dayanand’s arrest at his practice on 26 August. He was granted bail of R10 000 and the case was adjourned to this week.

According to reports, two post-mortems were at that time carried out on Vandayar, as well as an inquest being held. No charges were laid against Dayanand. The matter was also reported to the HPCSA and Dayanand responded in full to the enquiry from the HPCSA. No charge was laid against him by the HPCSA.

Dayanand’s attorney, Yolanda Gielank, said she was “gobsmacked” when she learnt that he was charged with murder and not culpable homicide, over negligence allegations. “I have asked the State if an inquest were held previously and we are yet to receive a response.

“This case poses a risk to all surgeons in South Africa, since there is no prescription for murder. Every surgeon who has touched a human being could possibly be charged with murder after this.”

Alarm over trend of homicide prosecutions of doctors

Last year, nine leading South African healthcare organisations sent an open letter to the Minister of Justice and Correctional Services, Ronald Lamola, urging the government to review culpable homicide law and its application in a healthcare setting. They noted that a present there was a very low threshold for blameworthiness when a patient dies while under medical care, which has resulted in errors of judgment in complex healthcare environments being criminalised, and healthcare professionals being convicted regardless of their intent.

Dr Kgosi Letlape, who was president of the HPCSA at the time, said that the profession was not seeking to evade responsibility for negligent actions but that the readiness to bring culpable homicide charges “criminalised the medical profession” and many doctors feared working in such conditions.

According to a 2021 survey by medical risk insurer, the Medical Protection Society, one in two of 500 South African doctors surveyed, had considered leaving the profession for fear of being prosecuted, while 88% were concerned about facing an investigation after an adverse patient outcome.

Among recent cases that have alarmed the medical profession:

Gynaecologist Dr Danie van der Walt was jailed in 2019 after a tortuous 14-year legal process following the death of a patient in 2005. The first South African doctor jailed for the death of a patient, he served eight months of a five-year sentence before being released on parole – only to have his sentence overturned, after his release, by the Constitutional Court on a technicality. Van der Walt was twice refused his application to appeal the judgment that put him behind bars.

In an ongoing matter dating back to 2019, paediatric surgeon Professor Peter Beale and anaesthetist Dr Abdulhay Munshi were charged with murder following the death of a 10-year-old patient, Zayyaan Sayed, after what was meant to be a routine laparoscopic operation for reflux.

In what was described by the SA Medical Association as an assassination, Munshi was shot dead. Beale, who has since been struck from the HPCSA role in another matter, went into hiding.

Need for changes to SA law

The medical profession has warned that the criminal prosecution of doctors encouraged the practise of ultra cautious “defensive medicine”. They have also pleaded, to no avail, for specialised medical courts in these types of cases.

MPS’s Graham Howarth and Tony Behrman recent wrote in MedicalBrief that such arrests have engendered a sense of disquiet in the South African healthcare community.

“It is not only the realisation and anxiety by healthcare workers of their vulnerability to charges of culpable homicide, but also the way the arrests are handled; their wide coverage and exposure in the lay press and television,” they wrote. “It can be argued that a ‘trial by media’ occurs, with some publications offering their interpretation of the cases with no obvious moderation of the articles, and without waiting until the court cases where the facts and the arguments for and against can be heard, weighed up and then opined upon.”

Howarth and Behrman wrote that the legal principles of culpable homicide as it pertains to South Africa are clear. “Negligence on the part of an individual, which results in the unlawful killing of a human being, is classified as culpable homicide. Culpable homicide is distinguished from murder by the fact that murder is killing that is not only unlawful but also intentional – so to be found guilty of murder intent must be proved.

“To prove negligence certain pre-requisites have to be met. In the healthcare arena, it must be shown firstly that the healthcare professional owed the patient a duty of care; secondly that the duty of care was breached – the care given was not of the standard expected under the circumstances. Finally, it must be shown that the breach of the duty of care was responsible for the harm caused. In civil litigation, if these tests are established, on the balance of probabilities, then a patient is entitled to compensation.”

International approach 

Writing in The Conversation, two legal academics said South Africa should legislate a higher threshold, as found in the Scottish law and in the New Zealand legal system, to findings of recklessness or gross negligence.

They said South Africa needs a system of greater openness, where practitioners are encouraged to report unintended and unexpected adverse events and apologise to the families of deceased patients. The country needs to move away from a culture of blame and fear to a system of learning from mistakes.

New Zealand has a programme aimed at learning from adverse events, minimising repeat behaviour and ultimately improving patient safety. Prosecutions of healthcare practitioners have become rare there.

Publisher’s Note: This MedicalBrief article may be freely republished with acknowledgement to MedicalBrief and a backlink to the original article.
 

Sunday Tribune PressReader article – Doctor accused of murder (Open access)

 

See more from MedicalBrief archives:

 

Jailed gynae whose conviction was reversed by ConCourt ends silence

 

Look to Scotland and New Zealand on criminal liability of doctors, urge experts

 

Prosecuting healthcare professionals for culpable homicide – who benefits?

 

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

 

 

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