A PRECEDENT setting matter involving a Richards Bay surgeon, who was recently charged with murder for his alleged negligence on the operating table, will head to court this week.
Doctor Avindra Dayanand will appear at the Richards Bay Magistrate’s Court for the death of Monique Vandayar, a 35-year-old businesswoman and mother of two.
Vandayar was referred to Dayanand as a patient in 2019 and died after undergoing a surgical procedure.
An inquest docket was opened after Vandayar’s death, 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 Tuesday.
A State pathologist conducted a post-mortem, and the family hired a private pathologist to do likewise thereafter.
The Health Professions Council of SA (HPCSA) received a complaint from the family and the regulatory body then conducted a probe, but were yet to release any findings.
The HPCSA did not respond to the “Sunday Tribune”’s questions.
Vandayar’s husband, Gary, lodged civil proceedings against Dayanand in 2021 and that matter was being handled by another court.
The medical fraternity were largely aghast at the National Prosecuting Authority move to charge Dayanand with murder and questioned how the State deemed his actions to be premeditated.
The NPA opted to not comment when approached by the Tribune.
Gary Vandayar, said his wife’s death was “huge devastation” for him and his children.
“I accept the medical fraternity is up in arms over the murder charge but those arms will be dropped when the merits of the case are revealed,” he said, before referring the Sunday Tribune to his attorney, who was not available to comment.
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.
Gielank said she had done much legal research and was yet to find justification for a murder charge.
“I have asked the State if an inquest was held previously and we are yet to receive a response.”
Gielank said she also awaited a copy of the case docket.
“We have been advised that there is an outstanding pathology report.”
Gielank speculated that the said report, “might point to an intention, but we don’t know”.
“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.
“Family members of the deceased will be upset, which is understandable. But a dangerous precedent is being set. It should have been thought through properly by the NPA.”
The patient was a stranger, she was referred to him,” said Gielank.
Dr Maheshwar Naidoo a friend and neighbour of Dayanand believed the murder charge was an overreach of power.
“This charge makes no sense whatsoever. It implies that the surgeon went to work that day, with the intention of wilfully ending his own patient’s life.”
“Criminalising clinical medicine is what we as doctors are unhappy with. We are not saying he (Dayanand) is guilty or innocent, that’s for the courts to say. What we are saying is that any one of us can be in his situation, which is disappointing.”
Naidoo referred to the similar allegations made against Professor Peter Beale, a paediatric surgeon and anaesthetist Dr Abdulhay Munshi, after the death of a 10-year-old, who they treated in 2019.
Munshi was shot and killed in 2020 and the charge against Beale was moved from culpable homicide to murder.
“‘I’m not sure who pushed for the murder charge against Dayanand, but you would expect the NPA to have applied better discretion.
“It seems like some people prefer to see doctors arrested and hauled in police vans. There was a public perception among some that doctors covered up for each other and get away with many things. It is not the case,” Naidoo said.
Dr Rinesh Chetty, a KZN Specialist Network executive, confirmed that Dayanand was the first doctor in the country to be charged murder, following a patient’s death.
Chetty maintained that doctors were not above the law and that there were other successful criminal cases against them, including culpable homicide matters.
He said, as medical professionals they needed clear and standard protocols relating to medical negligence, which must be adhered to.
“In medicine, we follow a peer review process and use internationally published research to guide our treatments.”
Chetty called on the NPA to earnestly consider doing the same and if there were a lack of capacity they should look at ways to improve funding and staffing.
“Their own legal colleagues are calling for clearer protocols and reasoning in light of Beale and Dayanand matters.”
Chetty said doctors would take guidance from the NPA to conform their treatments and actions accordingly, which were not clear presently.
He warned that the premature criminalisation of medicine is negatively affecting healthcare workers’ abilities to save lives and the trust in the law to protect the public.
Chetty said “defensive medicine'' global phenomenon was gathering momentum.
“Defensive medicine has taken over our abilities and decision-making for the past 20 years. In simple words, it is departing from normal medical practice as a safeguard from litigation,” said Chetty.
SUNDAY TRIBUNE