Jailing doctors for medical negligence is too severe, and medical mishaps should rather be used as teaching opportunities to prevent future fatalities, according to the Medical Protection Society (MPS).
The group is among various healthcare organisations, including the SA Medical Association (Sama), which have sent a letter to justice minister Ronald Lamola asking for a review of the law on culpable homicide.
They say patients or families seeking accountability from doctors should be given alternatives to the courts.
The letter was also signed by the Association of Surgeons of SA, the Federation of SA Surgeons, the Radiological Society of SA, the SA Medical Association, the SA Medico-Legal Association, the SA Private Practitioners Forum, the SA Society of Anaesthesiologists and the SA Society of Obstetricians and Gynaecologists.
The current law makes it too easy to attribute healthcare-related deaths to doctors even though fatalities are sometimes unavoidable, the groups said.
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 Africa’s 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, Sama president Angelique Coetzee said: “One culpable homicide case against a doctor is one too many.”
The letter to Lamola says: “It is hard to see who benefits from the current system. As well as families losing a loved one through tragic circumstances, doctors risk losing their careers and liberty, and the fear of criminal charges has a negative knock-on effect on patient care.
“The system stands in the way of patients receiving an early apology and a full explanation of events, and thereby denies closure.”
Emalahleni gynaecologist Dr Danie van der Walt in 2017 became the first SA medical doctor to be jailed for the death of a patient.
“I was absolutely devastated because suddenly I was a criminal after serving the community for over 40 years, seeing over 40,000 patients and delivering 8,000 babies, where I had never had a problem,” he said.
Van der Walt’s patient, 23-year-old Pamela Daweti, died in August 2005 after a complicated birth. The matter went through the Health Professions Council of SA, which fined him R10,000 but her family pushed for a legal case.
The Witbank regional court found Van der Walt guilty of culpable homicide. His appeal failed and he served eight months of a five-year sentence before being paroled.
“I believed I did the right thing, and throughout all the court sessions I thought someone would ... understand that anything can medically go wrong and it was not necessarily through negligence [that a patient could die],” he said.
He acknowledged the pain Daweti’s family felt at her death.
I was absolutely devastated because suddenly I was a criminal after serving the community for over 40 years, seeing over 40,000 patients and delivering 8,000 babies, where I had never had a problem
— Emalahleni gynaecologist Dr Danie van der Walt
After his parole, Van der Walt’s matter was heard in the Constitutional Court, which found that the magistrate who jailed him had erred by using her own medical research to reach a guilty verdict, and had not allowed it to be tested in the trial.
Van der Walt’s 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 following a routine acid reflux procedure in October 2019 — are among those that prompted the MPS to intervene.
Zayyaan’s father, Mohammad, said he could not understand why doctors weren’t 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 added.
“No-one is beyond reproach when it comes to life, especially the life of a child.”
Lamola’s spokesperson, Chrispin Phiri, said the minister was studying the letter.
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