Doc’s murder charge alarms medical bodies
● The court appearance of a KwaZulu-Natal surgeon on a murder charge after the death of a patient has sparked an outcry in SA’s medical fraternity, which has questioned the state’s ability to handle such cases.
Dr Avindra Dayanand, 35, handed himself over to police on August 26 in connection with the death of businesswoman Monique Vandayar, 35. She died three weeks after surgery to remove her gallbladder on August 22 2019.
Dayanand is expected to be tried under the concept of dolus eventualis, 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.
Dayanand operated on Vandayar, from Richards Bay, at Melomed hospital on the outskirts of Empangeni before she was admitted to another private hospital.
An inquest docket was initially registered but later changed to murder, with the National Prosecuting Authority (NPA) deciding to prosecute.
Dayanand, who is on R10,000 bail, appeared briefly in the Richards Bay magistrate’s court this week, where the case was adjourned to November 8 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,” Gielink said.
NPA spokesperson Bulelwa Makeke did not respond to queries.
Vandayar’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 rallied behind Dayanand, questioning the state’s competence in the handling of 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, noting that the Health Professions Council of SA (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 neighbour and colleague of Dayanand, said a complaint was laid against Dayanand with the HPCSA in 2020. “The complaint was processed and Dr Dayanand 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 Dr Dayanand be charged with culpable homicide (or even murder — though highly unlikely), other health professionals would not be so concerned,” he said.
Dayanand’s prosecution has reignited debate about the case against paediatric surgeon professor Peter Beale and anaesthetist Dr Abdulhay Munshi.
Beale was initially charged with culpable homicide in relation to 10-year-old Zayyaan Sayed, who died in October 2019 at Netcare’s Park Lane Clinic after a laparoscopic operation for reflux. The charge was later amended to murder. Munshi was shot in an apparent assassination in 2020.
Beale, 74, faces an additional charge related to an incident in July 2016 at Morningside Mediclinic, where he allegedly unlawfully and negligently caused the death of 21-monthold Alissa Strydom.
The outcome of the trial, which is set to be heard in the Johannesburg high court in January, could have major implications for the country’s medical industry. Beale was stripped of his licence to operate in February when the HPCSA removed him from its register based on “other previous complaints on which he was found guilty”. Mohammadh Sayed, Zayyaan’s father, has slammed the HPCSA, claiming it had only suspended Beale after a public uproar after his son’s death.
“The conduct of the HPCSA in failing to bring its members to account over the years is nothing short of deplorable,” Sayed said.
“The body’s apathy in taking action against a plethora of its members has resulted in many families having their lives altered permanently via the death or serious injury of a loved one due to the actions of many medical practitioners who have failed to act in accordance with the standard of care expected of medical practitioners placed in a position of trust.”
The HPCSA did not respond to questions regarding both cases.
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 health-care workers to save lives and negating the trust in the law to protect the public.