The court appearance last week in Richards Bay of a surgeon charged with murder after a patient’s death has sparked an outcry in SA’s medical fraternity, which has questioned the state’s ability to handle such cases and said the Health Professions Council of SA (HPCSA) had already investigated the matter and decided against further action.
As reported in MedicalBrief, Dr Avindra Dayanand handed himself over to police on 26 August in connection with the death of Monique Vandayar who had died three weeks after surgery to remove her gallbladder on 22 August 2019.
Dayanand is expected to be tried under the dolus eventualis principle or legal intention – the perpetrator objectively foreseeing the possibility of their act causing death – the same principle raised in the murder trials of musician Jub Jub and Paralympian Oscar Pistorius, reports TimesLIVE.
Dayanand operated on Vandayar at Melomed Hospital outside Empangeni before she was admitted to another private hospital, where she died 10 days later. An inquest docket was initially registered but later changed to murder, with the NPA deciding to prosecute.
Dayanand, who is on R10 000 bail, appeared briefly in the Richards Bay Magistrate’s Court last week, where the case was adjourned to 8 November for representations to be made to the Director of Public Prosecutions, Elaine Zungu, by his attorney, Yolanda Gielink. Gielink said the state was pursuing a charge of murder based on legal intention.
“I spoke to the state advocate and asked him how he is going on a murder charge and not culpable homicide and he said they’re going on dolus eventualis,” she said.
NPA spokesperson Bulelwa Makeke didn’t respond to queries.
Monique’s husband, Gary, said his family had been left broken by her death but did not want to comment on the merits of the case.
Health professionals have questioned the state’s competence in handling medical cases, which experts have described as “highly complex”.
The South African Private Practitioners Forum, Surgicom and the Association of Surgeons of SA have slammed the state’s decision, saying the HPCSA had conducted an investigation and its findings were being completed.
In a joint statement the medical bodies called on the Director of Public Prosecutions and police to withdraw the charges and allow the ongoing civil and HPCSA processes to continue to completion.
Dr Maheshwar Naidoo, a colleague of Dayanand’s, said a complaint was laid against Dayanand with the HPCSA in 2020.
“The complaint was processed and he was asked for an explanation, which he immediately provided in writing to the HPCSA. No further action was taken against Dr Dayanand by the HPCSA. Had the HPCSA recommended that he be charged with culpable homicide (or even murder – though highly unlikely), other health professionals would not be so concerned,” he said.
The HPCSA did not respond to questions.
Dr Rinesh Chetty, an executive at KZN Specialist Network, a multidisciplinary medical organisation, said the “premature criminalisation” of doctors was negatively affecting the ability of healthcare workers to save lives and negating the trust in the law to protect the public.
Statement by medical bodies (Open access)
TimesLIVE article – Surgeon’s murder charge after patient dies sparks medical outcry (Open access)
See more from MedicalBrief archives:
KZN surgeon’s murder charge triggers new alarm among doctors
Coming into line with international practice on criminalisation of doctors
Look to Scotland and New Zealand on criminal liability of doctors, urge experts
Prosecuting healthcare professionals for culpable homicide – who benefits?