Bernadette Wicks
Senior court reporter
3 minute read
21 Jul 2020
3:11 pm

Concourt lets doctor off the hook for death off patient … for now

Bernadette Wicks

The gynaecologist had been found guilty of causing the death of a patient, but the Constitutional Court says his rights to a fair trial had been infringed and the case should be referred it back to the provincial Director of Public Prosecutions

Picture: iStock.

An Mpumalanga doctor who was in 2017 found guilty of culpable homicide in connection with the death of a young mother he was treating, has had his conviction overturned by the Constitutional Court.

But he is not out of the woods yet.

Justice Mbuyiseli Madlanga, with all ten other justices concurring, on Tuesday set aside the Emalahleni Regional Court’s original verdict against Danie Van der Walt, finding his rights to a fair trial had been infringed. Madlanga cautioned, however, that the ruling was not based on the merits of the case and referred it back to the provincial Director of Public Prosecutions to decide whether or not Van der Walt should be re-arraigned.

An obstetrician and gynaecologist, Van der Walt was originally convicted of culpable homicide after a patient of his died at Life Cosmos Hospital. The then 22-year-old had suffered complications during the birth of her daughter and at trial the state argued her subsequent death was as a result of medical negligence on the part of Van der Walt.

The court at the time agreed and sentenced him to five years in prison.

Van Der Walt approached the Constitutional Court after an unsuccessful appeal to the Mpumalanga High Court and following the Supreme Court of Appeal’s refusal to hear his case. In court, he argued firstly that his fair trial rights had been violated – in particular, his right to adduce and challenge evidence – and secondly that the sentence meted out had been “shockingly inappropriate”.

In the first instance, Van der Walt took issue with various pieces of the state’s evidence at trial being ruled inadmissible at judgment.

“The crux of the [Van der Walt’s] complaint is that the non-admission of some of the exhibits meant that the evidence elicited through cross-examination on them was also rejected. And he came to know this only at the stage of conviction,” Madlanga explained yesterday.

Ultimately, Madlanga found the late admission of evidence in this case constituted a serious irregularity.

“Without a timeous ruling on all evidence that bears relevance to the verdict, an accused may be caught unawares at a stage when she or he can no longer do anything,” he said.

He also found that the magistrate’s use of medical textbooks not referred to in court, to conduct her own research, was problematic in that Van der Walt had not been able to challenge this evidence.

“Whether [Van der Walt] would have been able to challenge the textbook evidence successfully is not the question. The relevant question is whether [Van der Walt] had the opportunity to challenge the textbook evidence,” Madlanga said.

Of the sentence meted out, however, Madlanga found it would have been appropriate had Van der Walt’s conviction been upheld.

Van der Walt argued that doctors convicted of culpable homicide arising from professional negligence should be treated with leniency, but Madlanga disagreed.

“I see no reason for an exception to be made where doctors are found, by competent courts, to be guilty of causing the death of people they were entrusted to care for … The law demands of experts, including doctors, a higher standard of care where the conduct complained of relates to their area of expertise,” he said.

“The gut-wrenching truth is that those that die at the hands of doctors who act negligently are terminally denied that all important right, the right to life. For me then, it is a no-brainer which way the scale must tilt.”

Van der Walt’s attorney, Rudi Krause, on Tuesday declined to comment save to say that his client had already served his sentence and had been released under correctional supervision after 10 months in prison.

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