An Open letter to President Ramaphosa from the President of FOSAS March 4, 2020

10 January 2020

Dear M Ramaphosa

As the President of the Federation of South African Surgeons FOSAS), representing 6000 public and private practice surgeons in 21 surgical disciplines, I write to you to request your urgent reassurance to all doctors in our country to be able to continue their duties without fear of criminal prosecution without due process and a fair trial.

You are probably aware of the recent arrest of a paediatric surgeon, Prof Peter Beale and his colleague anaesthetist Dr Abdullhay Munshi, after allegations of negligence, following the death of a young boy after elective surgery.

The loss of any life – especially that of a child – is tragic and our deepest sympathy are with the bereaved parents and family. I do not want to argue the facts of this case here but would like to point out the consequences that this sequence of events holds for our country’s medical professionals as well as our 60 million fellow South Africans.

All mistakes do not equate to negligence. To be proven negligent by law, a fair process should be followed, one which needs to proceed – first and foremost – through the Health Profession’s Council of South Africa (HPCSA) to ensure a professional investigation and/or a trial by medical experts. Then, and only then, can a sound judgement of negligence be made, and can a criminal or civil case be responsibly pursued.

Although the arrest of Prof Beale and Dr Munshi may appear to be a minor and isolated event, it is sending shockwaves through the medical community. Any adverse event during treatment now, evidently, puts a doctor at risk of imprisonment.

Allow me to elaborate by giving two examples:

1.  If a patient has a heart attack and is treated at an emergency unit at any public or private hospital and some of the equipment or medication needed, as per national or international protocol, turns out to be unavailable – through no fault of the doctor on duty – , the doctor might now hesitate to act with “second best” alternative options, because any suboptimal outcome might land him/her in court or prison.

2.  A patient with cancer is treated by a surgeon who performs surgery to remove the cancer. The operation was uncomplicated, but the patient develops a cancer related complication after the operation and subsequently dies in spite of all efforts to treat the complication. The patient’s death will now put the surgeon at risk of being criminally charged.

There are many similar scenarios like the two mentioned. Would any professional practitioner be willing to accept such a risk?

The training of South African doctors is of the highest standard and prepares them for saving lives often with limited and/or suboptimal equipment due to circumstances unique to our country. The arrest of Prof Beale and Dr Munshi is now forcing manydoctors, young and old, to be constantly aware of the risk of arrest and litigation merely by trying to help patients.

I urge you to take notice of this event and request you to take the steps that will reassure everybody that our doctors still have a working environment in which to save lives in true South African spirit of Ubuntu without the fear of unfair criminal prosecution or imprisonment.

We need to hear from you that our future lies in this beautiful country of ours and not elsewhere.

Dr Johannes van Waart

(President – FOSAS)

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