A choice between allowing a foremost oncologist with a highly inappropriate bedside manner to continue his work, or the potential death of patients.

This is what Judge Derek Wille was asked to consider in two urgent applications to the Western Cape Division of the High Court. He has now set out the reasons for his rulings.

The applications were by 17 cancer patients who took Life Vincent Pallotti Hospital and Life Healthcare Holdings to court for terminating “celebrated” oncologist Dr Louis Kathan’s admission and practising privileges at the hospital. Kathan heads Kathan Oncology, which still operates out of Vincent Pallotti.

In November, Judge Wille issued a provisional interdict enabling Kathan to retain a presence at the hospital, which will remain in effect until the resolution by a court of his dismissal.

The dispute between Kathan and the Life Healthcare group had been sent for private mediation, which was unsuccessful. The matter was also not before the Commission for Conciliation, Mediation and Arbitration (CCMA), the judge noted.

Carry on as usual

Examples of Kathan’s behaviour were contained in court papers by Craig Koekemoer, a business operations executive at Life Healthcare Holdings, who set out the doctor’s penchant for chit-chat around female colleagues about strip clubs, lap dances and how he preferred blondes. He also allegedly made homophobic and racist statements.

Read more in Daily Maverick: Cancer patients win interdict to keep dismissed ‘miracle worker’ oncologist at Vincent Pallotti despite his ‘fetishes’

Staff became so gatvol of the prattle that two of them resigned. Kathan, in turn, said he didn’t mean to upset or harass anyone with his small talk while going about healing. Besides, there was a “context”, he argued.

However, Koekemoer said, the situation became so unbearable that a chaperone had been appointed to accompany the specialist.  

“The chaperone has not been entirely successful in protecting the radiation therapy unit’s staff, as Kathan had threatened and intimidated them,” Koekemoer said.

Judge Wille said that at this point the hospital should have been guided by policy about unacceptable or undesirable conduct by a medical practitioner.

“The incident of unacceptable conduct was the first occurrence and not of a nature that qualified for immediate termination,” he noted.

Public interest 

“More than a dozen individuals afflicted with cancer served as the applicants for the original interim application, requesting temporary alleviation while the review underwent final evaluation.” 

The decision to terminate Kathan’s contract “affected members of the public” and “effectively denied these cancer patients access to a skilled specialist in stereotactic and brain tumour oncology”.

The action had also undermined their right to healthcare.

“Private hospitals must consider the public interest when making decisions that impact the public,” Judge Wille noted.

Kathan was “a renowned and respected oncologist regarded as this facility’s most skilled and well-informed neuro-oncologist”.

This was not disputed, the judge found.

The doctor’s work had been regarded as “exceptional” by other medical experts, and his patients and professional colleagues had confirmed the efficacy of his work in saving lives.

“In summary, he saves people’s lives in difficult and trying circumstances and enjoys a unique and trusting relationship with his cancer patients.”  

Satisfied requirements

The judge found the interim relief application satisfied several requirements, including that the hospital had terminated Kathan’s employment without giving him prior notice and no rehabilitation plan had been implemented.

“The issue of irreparable harm weighed heavily with me when considering the interim relief chartered for by the applicants [the patients],” Judge Wille opined.

Kathan’s patients had insisted that if he was not available to treat them at the radiation unit housed at the hospital, “they harboured severe concerns about suffering irreversible damage to their health and treatment regimes”.

It was this that had to be balanced against the claims of Kathan’s behaviour and poor relationship with staff, the judge opined.

“Based on the specific facts of this case, I determined that the termination decision was indeed an administrative action.” 

The courts were “enjoined to provide a remedy where there is some discrimination with no other remedy available” and some of the applicants in this case faced discrimination that was “potentially life-threatening”. 

Judge Wille said that he had “anxiously considered the potential outcomes that the applicants had in the review application, considering both the administrative law arguments and the contractual arguments” and that the prerequisites had been firmly established. DM