Surgeon’s murder charge after patient dies sparks medical outcry. #MedicalDolusEventualis

Doctors question the state’s competence in handling the case, noting that the Health Professions Council of SA had investigated the matter and decided against further action

by Orrin Singh

09/10/2022

The court appearance of a KwaZulu-Natal surgeon on a charge of murder after the death of his 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 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.

Dayanand operated on Vandayar, from Richards Bay, at Melomed hospital on the outskirts of 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.

Dr Avindra 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 pursing 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 didn’t respond to queries…..continued in link.

#frontlinethoughts
The criminal principle of ”Dolus eventualis” used in the practise of medicine and surgery. 

What does dolus eventualis meaning?
 The last 'dolus' in a murder charge is that of dolus eventualis or legal intention. This is where an accused person or in this case a surgeon  can objectively foresee that their conduct is likely to cause the death of another, but proceeds to act regardless of the consequences of their conduct.

“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.” -Dr A Dayanand’s attorney, Yolanda Gielank.