By Bernadette Wicks.
@iStock
Paediatric surgeon Peter Beale has been found not guilty of charges of murder, culpable homicide and fraud levelled against him over the deaths of three children on whom he operated.
Judgment in the long-running case – which saw Beale first arrested and charged in 2019 – was handed down in the Gauteng High Court in Johannesburg on Tuesday.
Central to the State’s case was its argument that Beale had “recklessly and fraudulently undertook unnecessary paediatric surgeries” in order to “re-establish his financial position” after he lost R1.5 million in the infamous Tannenbaum Ponzi scheme.
However, on Tuesday, Judge Thifhelimbilu Mudau found that the State had not been able to prove this and that, without a motive, the case collapsed.
Doctors’ culpability
The case thrust questions around doctors’ culpability to the fore, with only a handful of these matters – involving patient deaths – having ever been criminally prosecuted in South Africa, with the move to arrest and charge Beale sparking widespread debate.
Beale – renowned worldwide in the field of paediatric surgery – first found himself in the headlines in June 2019, when he was featured in a News24 story about a mother’s protracted search for answers in the wake of the death of her daughter.
The 21-month-old died at Mediclinic Morningside in 2016 following surgery which Beale performed to treat acid reflux.
Then news broke of 10-year-old Zayaan Sayed’s death following the same surgery, performed by the same surgeon – this time at Netcare Park Lane Clinic in October 2019.
The HPCSA suspended Beale in December 2019. The same month, he and the anaesthetist he had been working with during the 10-year-old’s surgery, Dr Abdulhay Munshi, were also criminally charged over the boy’s death.
They appeared in the Johannesburg Magistrate’s Court and were granted bail of R10 000 each. Munshi, however, was killed in a hit-style shooting in Orange Grove in September 2020. No-one has, to date, been arrested for his murder.
Charges relating to the death of the 21-month-old, as well as another three-year-old boy – both of whose identity the court later ordered be withheld – were subsequently added and the trial got underway early last year, with Beale pleading not guilty to a total of three counts of murder and two counts of fraud.
During closing arguments in November, however, the state conceded that he could not be convicted of murder over the 21-month-old’s death at least and requested the court find him guilty of culpable homicide, instead.
Misrepresenting
In the case of the three-year-old, Beale had been accused of misrepresenting to the child’s parents that a biopsy had confirmed he had Hirschprung’s Disease and required “pull-through” surgery. This was when there was in truth no confirmation of the diagnosis and the surgery was unnecessary and inappropriate.
The state had alleged that Beale misrepresented to Zayaan’s parents that he had intestinal metaplasia which required surgery when, in fact, a previous biopsy had explicitly stated he was not displaying any symptoms of the relevant condition.
When it came to the 21-month-old, Beale was accused of having lost a suture needle during her surgery and injured an artery which caused significant blood loss.
Conceded
In the trial, the State had called another paediatric surgeon to the stand and he had testified that at a 2009 conference, Beale offered to assist colleagues with surgeries to claw back the money he had lost in his tanked investment.
In his ruling, however, Mudau – who was assisted in reaching a final decision by two medical experts appointed as assessors – highlighted that during cross-examination, the witness was told that Beale may not have been serious and that the exchange was merely a casual conversation between colleagues.
“[The witness] conceded this,” said Mudau.
He found, further, there was “no direct evidence supporting the allegations of murder in any of the related charges”.
“The State failed to demonstrate that [Beale] knew that the intra-operative act was not indicated. Consequently, the necessary knowledge of unlawfulness, which is required for criminal intent, is absent,” the judge said.
He found further that Beale could not be convicted of culpable homicide either and that while, in the case of the three-year-old boy at least, his complications should have been picked up earlier, it was the nursing staff’s fault that they were not.
“There is nothing to show [Beale’s] conduct deviated from that of a reasonable person (paediatric surgeon,” said Mudau.
‘No reason to doubt them’
Finally, the judge found the fraud charges could not be sustained because the state had not been able to prove that Beale meant to mislead any of the parents involved.
Beale had admitted to having misread Zayaan’s biopsy report, chalking it up to a simple error, and had explained that he had not gone into details about the three-year-old’s condition – which was in fact a variant of Hirschprung’s- so as not to confuse his parents.
And the court accepted these explanations.
“There is nothing to contradict these explanations and in the absence of a financial motive, there is no reason to doubt them,” said Mudau.
Mudau closed off by addressing the parents of the children involved, saying the loss of life was “regretted”.
He also referred his judgment to the HPCSA to consider Beale’s admission during trial that in Zayaan’s case, he regretted leaving the hospital when the child’s condition was reported to him – but did so anyway.