SHOULD DOCTORS BE PROTECTED FROM GOING TO JAIL IF THEIR BUNGLING CAUSES A PATIENT'S DEATH?

 Dear Readers,

Dr Danie van der Walt

          For years doctors in South Africa have supposedly been policed by the Health Professions Council (HPC).  Established in 1974 this statutory body that is meant to set and maintain ethical standards for the medical profession claims to be “Protecting the public and guiding the profession.” In reality it acts more like a doctor protection society than anything else.

          In spite of this the Sunday Times now tells us that the Medical Protection Society and eight other healthcare organisations like the Federation of South African Surgeons are campaigning to have doctors exempted from the culpable homicide law. Jailing doctors for medical mistakes they believe is too severe and they have asked the Minister of Justice Ronald Lamola to review this legislation.

          This move was prompted by the imprisonment in 2017 of 73-year-old gynaecologist Dr Danie van der Walt, and another doctor who is facing a murder charge. Van der Walt became the first doctor to be jailed in South Africa for medical negligence after his patient 23-year-old Pamela Daweti died in 2005 during a complicated birth. The HPC treated the matter with its usual doctor friendly approach and fined the gynae R10 000.

          Her family took the matter further and in the Witbank regional court he was convicted of culpably homicide but only served eight months of a five year prison sentence before being paroled. Subsequently when he took the case to the Constitutional Court the judges there decided that the magistrate had incorrectly convicted him by using her own research which was not able to be tested in court.

          The Sunday Times report is headlined Ease up on negligence laws, doctors urge minister when in fact the Health Professions Council has been taking a soft line with erring doctors for as long as it has existed.  Almost 20 years ago its President at the time Dr Nicky Padayachee undertook to do something about what he described as the “inappropriate light sentences” his council was giving guilty practitioners.

          He was going to see that there was a “radical overhaul” of Council procedures so that it “could do its job as a watchdog for the public”, but nothing much changed because if it had orthopaedic surgeon Dr Wynne Lieberthal would not have been able to go on maiming numerous people over a period of more than two decades. Some of them even died not long after Lieberthal had cut open their backs.

          My book The Butcher of Rosebank now on Amazon reveals the deplorable way the HPC allowed Lieberthal to continue operating in spite of ample evidence that he should have been struck off the medical register very early in his career.

          At the inquiry that the HPC was belatedly forced to convene by the massive media exposure of Lieberthal’s dastardly deeds Advocate Danny Berger, who led the evidence against him had this to say about the back operations Lieberthal did: “There are so many examples where the job is either incomplete or not properly done, involving operating in the wrong place; misplacing screws and having them come loose. From this one gets a picture of a surgeon who is intent of doing as many operations as he can regardless of whether those operations are indicated and without taking the time that is needed to conduct the operations properly. It appears to us that the explanation for all these rushed operations was financial. He instilled fear into his patients to get them to agree to urgent surgery.”

          If that didn’t warrant a lengthy prison sentence I do not know what does. But even after he was found guilty of all the seven charges of unprofessional conduct he was facing and was struck off, it was not long before he was reinstated under dubious circumstance and allowed to repeat his butchery.

          While the policing of Lieberthal is perhaps the worst example of the deplorably lenient way the HPC treats errant doctors there are many other examples happening all the time. The Police usually don’t want to investigate these because they believe this is the job of the HPC which can’t send doctors to prison or order them to pay compensation to patients they maim, or even as happen in one case I came across, when the GP of an elderly woman living on her own ripped off her entire life savings of several hundred thousand rand.

Dr Peter Beale

            The second doctor the Medical Protection Society and the others are worried about is Dr Peter Beale a 73-year-old Johannesburg paediatric surgeon. He has been charged with murdering 10 year old Tayyaan Sayed two years ago when the boy died while having a routine laparoscopic operation for reflux. He is also accused of fraudulently misrepresenting the result of a biopsy.

          He has now gone into hiding after his anaesthetist for the operation Dr Abdulhay Munshi was shot dead in Johannesburg last year. The Police appear to have made no headway in establishing who the killer was and the boy’s father Mohammadh Sayed has denied any involvement.

          “At the age of 65 or 70 doctors should have their licences revoked because with age comes certain limitations,” he was quoted as saying. I was told by a professor at the Wits Medical School that doctors in the public service have to retire at 65 but the HPC appears to have set no age limit for those in private practice. The potential for life threatening “mistakes” are limitless if doddering old surgeons are allowed to do all kinds of complicated operations.

          When you have such a weak kneed organisation like the Health Professions Council it is not surprising that some people might loose faith in the ability of the authorities to take appropriate action against a doctor when a death occurs during one of his operations and mete out their own brand of justice.

          It would be a very backward step if the Minister of Justice was to exclude doctors from being charged with culpable homicide when one of their patients dies while being treated.  All unnatural deaths should be dealt with by a criminal court and the Minister should alter the make up of the HPC because when you have doctors judging doctors justice is bound to suffer. 

Regards

Jon, a Consumer watchdog with a particular interest in medical malpractice.