LEGAL PROTECTION FOR DOCTORS BASED ON THE MEDICAL PRACTICE ACT 2004
UNDERGRADUATE THESIS
This Undergraduate Thesis is submitted as one of the requirements to obtain the degree of Bachelor of Laws at Faculty of Law
Universitas Muhammadiyah Yogyakarta
Name : Wahyu Ridha Rahma Agustiana
Student Number : 20120610335
Faculty : Law
Major : Law Science (International
Program for Law and Sharia)
Field of Study : Health Law
FACULTY OF LAW
DECLARATION
I hereby declare that the undergraduate thesis which entitled “Legal
Protection for Doctor based on the Medical Practice Act 2004”, its content is my own original work and no portion of my thesis has been copyrighted previously unless properly referenced. On this statement, I am ready to bear the risk / any sanctions imposed to me in accordance with applicable regulations, if in the future found a breach of items above, I am willing to accept the sanctions.
Written by
Name : Wahyu Ridha Rahma Agustiana
Student Number : 20120610335
Faculty : Law
Major : International Program for Law and Sharia University : Universitas Muhammadiyah Yogyakarta
Yogyakarta, August 20th, 2016
DEDICATION
This undergraduate thesis dedicate to
My beloved parents
Agus S.SiT
Murniati Sardin
My beloved brother and sisters
Wahyuni Ridha Ramadhani. S.kg.
M. Tri Saputra
Wahyu Ridha Ramadhan Citra
FOREWORD
Alhamdulillah, thank you Allah for giving me the blessing, mercy, and opportunity to accomplish my undergraduate thesis on titled “Legal Protection for Doctors based on the Medical Practice Act 2004”. This undergraduate
thesis is written as a completion of the bachelor degree of law, at the Universitas Muhammadiah Yogyakarta. I have chosen this title to find legal certainty and protection on the regulation of doctors that I will explain later in my research. And don't forget to send salawat on the Prophet sal Allahu alayhi wa sallam to acknowledge the great blessing that Allah has given us by sending the Messenger to us.
First of all. I would like to thanks to my parents, Agus S, SiT and Murniati Sardin and my sisters and brother, Uni, Putra, Citra and Katri, who have given me a lot of prayers, support, morally and materially. And the second I would like to thanks very much to both of my advisors, M. Endrio Susila, S.H., MCL and Iwan Satriawan, S.H.., MCL., Ph.D, who have given their effort to help me, given me many corrections, critical remarks, suggestions and many motivations to make my undergraduate thesis idealist, insya Allah.
I would like also thanks to all of lecturers in the Faculty of Law especially in IPOLS (International Program for Law and Sharia). The director of IPOLS, Nasrullah, H., S.H., S.A.g., MCL. M. who always motivate me. Thank you very much to DR. Zaid Mohamad, om Ismail Sardin, S.Pd., SKM., M.Kes., kak
Amalina Arifin, LL.B, mas Akhmad Syafe’i, S.Pd, and teh Resa Wilianti, S.H,
who given many contributions to correct my grammar and structure.
I would like also say thanks to my supporter team, my crazy best friends, my survivor friends who never tired support me, also sometimes making jokes about me. They are, Suci Mardhatillah., S.H., Apriana Daru Prabowo Wati., S.H., Elida Rahajeng, S.H., Khoirunnisa Aganovilia, S.H., Maidatul Husna, Mohamad Hazyar Arumbinang, S.H., Yovi Cajapa Endika, S.H., Andika Putra, S.H., Rofi Aulia Rahman., SH and Dicky kurniawan. You are amazing guys, I never met people who so weird and complete like you guys.
Thank you very much, alhamdulillah because of all of you I can finish my very important and valuable undergraduate thesis. I do hope this undergraduate thesis can bring benefit to all.
Yogyakarta, 10 Augusts 2016
Table of Contents
CHAPTER ONE: INTRODUCTION ERROR! BOOKMARK NOT DEFINED.
A. BACKGROUND OF RESEARCH ...ERROR! BOOKMARK NOT DEFINED.
B. RESEARCH PROBLEM ...ERROR! BOOKMARK NOT DEFINED.
C. OBJECTIVES OF RESEARCH ...ERROR! BOOKMARK NOT DEFINED.
D. BENEFITS OF RESEARCH ...ERROR! BOOKMARK NOT DEFINED. CHAPTER TWO: LITERATURE REVIEW ... ERROR! BOOKMARK NOT DEFINED.
A. LEGAL PROTECTION ...ERROR! BOOKMARK NOT DEFINED.
B. DOCTOR ...ERROR! BOOKMARK NOT DEFINED.
C. MEDICAL PRACTICE ...ERROR! BOOKMARK NOT DEFINED.
D. MEDICAL MALPRACTICE ...ERROR! BOOKMARK NOT DEFINED.
1. The Causes of Medical Malpractice ... Error! Bookmark not defined.
2. Theory Malpractice ... Error! Bookmark not defined. CHAPTER THREE: RESEARCH METHOD .... ERROR! BOOKMARK NOT DEFINED.
A. TYPES OF RESEARCH ...ERROR! BOOKMARK NOT DEFINED.
B. TYPE OF DATA ...ERROR! BOOKMARK NOT DEFINED.
C. DATA COLLECTION ...ERROR! BOOKMARK NOT DEFINED.
D. DATA ANALYSIS ...ERROR! BOOKMARK NOT DEFINED. CHAPTER FOUR: FINDING AND ANALYSIS ERROR! BOOKMARK NOT DEFINED.
A. THE IMPORTANCE OF LEGAL PROTECTION FOR DOCTORS
1. The medical malpractice accusations are extremely stressful ... Error! Bookmark not defined.
2. Differences in Perceptions of Medical Malpractice ... Error! Bookmark not defined.
3. The application of health law and medical dispute resolutions cannot be implemented properly ... Error! Bookmark not defined.
B. LEGAL PROTECTION FOR DOCTORS UNDER THE MPA2004
(UNDANG-UNDANG NO. 29 TAHUN 2004 TENTANG PRAKTIK KEDOKTERAN)
ERROR! BOOKMARK NOT DEFINED.
1. Doctors should perform the obligations as governed in section 51 of the MPA 2004 as follows: ... Error! Bookmark not defined.
2. Doctor should take some preventive action... Error! Bookmark not defined.
3. Medical defensive ways that can protect and liberate the doctors from lawsuits. ... Error! Bookmark not defined.
a. Therapeutic agreement ... Error! Bookmark not defined.
b. Informed consent ... Error! Bookmark not defined.
c. Medical records and medical audit ... Error! Bookmark not defined.
d. Professional standards... Error! Bookmark not defined.
e. Contributory negligence ... Error! Bookmark not defined.
f. Respectable Minority Rules and Error of (in) Judgment ... Error! Bookmark not defined.
g. Volenti non fit injuria or Asumption of risk ... Error! Bookmark not defined.
h. Respondeat superior or vicarious liability (Hospital
Liability/Corporate Liability) ... Error! Bookmark not defined.
i. Res ispa Loquitur ... Error! Bookmark not defined. CHAPTER FIVE: CONCLUSION AND RECOMMENDATION ... ERROR! BOOKMARK NOT DEFINED.
A. CONCLUSION ...ERROR! BOOKMARK NOT DEFINED.
List of Statutes
Undang-Undang No.29 Tahun 2004 tentang Praktik Kedokteran (The Medical Practice Act 2004)
Undang-Undang No.36 Tahun 2009 tentang Kesehatan (The Health Act 2009)
Undang-Undang No. 36 Tahun 2014 tentang Tenaga Kesehatan (The Health Worker Act 2014)
List of Abbreviations
BW : Burgerlijk Wetboek
CT scan : Computerized Tomography Scanner
ETD : Efek Tak Terduga
IDI : Ikatan Dokter Indonesia
IRC : Internal Revenue Code
KKI : Konsil Kedokteran Indonesia
KUHP : Kitab Undang-Undang Hukum Pidana
ME : Medical Error
MKDKI : Majelis Kehormatan Disiplin Kedokteran Indonesia
MV : Medical Violence
PDGI : Persatuan Dokter Gigi Indonesia
SOP : Standard Operating Procedure
UN : United Nation
Glossory
Caesarean :[Latin, si-zair-ee-uh n] Also called Cesarean section,C-section is an operation to deliver a baby. It involves making a cut in the front wall of a
woman’s tummy (abdomen) and womb.
Culpa Lata : [Latin, Fault, blame, or neglect.] a Civil Law term that implies that certain conduct is actionable. The word culpa s applied to acts of commission and omission in both tort and contract cases. It implies the failure to perform a legally imposed duty, or Negligence.
Lata Culpa means gross or wanton fault, or neglect.
Culpa Levisimma : [Latin] levis culpa is common or ordinary negligence, or the absence of reasonable care, levissma culpa s slight neglect of fault.
Dolus : [Latin] evil intent, embracing both malice and
fraud
Vorsatz : [German] intention
Willens en wetens handelen : [Dutch, knowingly, deliberately]
Inspanningverbintenis : [Dutch] Verbintenis means obligation and
inspanning means efforts so inspaningverbntenis is
obligation of efforts.
Nonfeasance : nän fēzǝns. Failure to perform an act that is required by law
Orthodontics : ôrTHǝ däntiks is derived from the Greek orthos
Orthodontics is the branch of dentistry that corrects
teeth and jaws that are positioned improperly.
Res ispa Loquitur : [Latin] res ipsǝ läkwitǝr, rās, lōkwǝ tŏŏr. It is a phrase that means "the thing speaks for itself". In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption ofnegligence on the part of the defendant through the use of circumstantial evidence.
Respondeat superior : [Latin] “Let the master answer”
Resultaanverbintenis : [Dutch] Verbintenis means obligation and resultaat means result so inspaningverbntenis is
obligation of result. (which are preferred here are the results)
Lex specialis : [Latin] is a doctrine relating to the interpretation of laws and can apply in both domestic and
international law contexts.
Volenti non fit injuraex : [Latin] “to one who is willing, no harm is done” is a common law doctrine which stated that if
ABSTRACT
There is a tendency in the society to presume that all cases involving the doctors are medical malpractice cases. The allegations of medical malpractice cases arouse some impacts because of the debatable definition and punishment of that offence. In such situation, legal protection for doctors is necessary in order to ensure that, they need justice and legal certainty. These cases raise two research problems, firstly, what is the importance of legal protection for the doctors. Secondly, how the MPA 2004 (Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran) provides legal protection for the doctors. These questions were answered through normative legal research and analysed by discriptive qualitative research and the data were collected from secondary data. The result of research is that legal protection for doctor is important because it will increase public trust to doctors and provide legal certainty. The MPA 2004 provides legal protection explicitly in Section 50 (a) and implicitly in Sections 39, 45, and 46. Those Sections can protect and guide the society and also the law enforcement officers to understand clearly on that matter. Based on the result of research, the researcher will provide some recommendations: completing the MPA 2004 by adding some sections on the definition of medical malpractice and legal protection more detail; optimizing related institution such as The Indonesian Medical Association (IDI), Medical Disciplinary Tribunal (MKDKI), Indonesia Medical Council (KKI) etc.
CHAPTER ONE
INTRODUCTION
A. Background of Research
For the last few years, we have heard about the malpractice claims against
doctors in various regions in Indonesia. The media have discredited and accused
that the doctors have made mistakes in the medical treatments. Cases of
malpractice allegations are often reported by the media. The doctors are
considered irresponsible and careless in carrying out their profession. Besides,
what the news reports is not entirely true. It sometimes misleads the public
opinion who actually need better medical help.1
For an example, dr. Ayu’s malpractice case was widely reported by the
media in late 2013 and early 2014.2 In this case, the Supreme Court decided that
dr. Ayu and her two colleagues had been found guilty for committing criminal
1Michel Daniel Mangkey, “Perlindungan Hukum Terhadap Dokter dalam Memberi kan Pelayanan Medis” Ejournal Unsrat, Lex et Societatis, Vol. II/No. 8/Sep-Nov/2014 p. 14
2
Case of dr. Ayu occurred in April 2010 when Julia Frances Makatey died in Hospital Prof Dr RD Kandou Malalayang, Manado for a caesarean. In this case dr. Ayu was the doctor who performed the Caesarea surgery. what made by dr. Ayu alleged medical malpractice that caused the death of the patient.
3
See further Article 359 of Criminal Code (Pasal 359 KUHP Jis. Pasal 361 KUHP, Pasal 55 ayat (1) ke- 1 KUHP)
4
colleagues)5. However, it was still unfair for the convicts that they had to undergo
an unnecessary legal process. Not only wasting time, this case has obviously
created psychological trauma for convicts. This case does not only harm dr. Ayus’ personal reputation but also harms the reputation of medical professions.
What factors that increase malpractice cases? Are all reported cases of
malpractice true or they are merely caused by patients’ dissatisfaction? It has been known that doctors have a major role in treating patients. But in every medical
practice there is such thing as a medical risk.6 There are unavoidable risks of any
medical procedure.
The Medical Practice Act 2004 or known as the MPA 2004
(Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran) has set up all of the
medical practice issues. There are 88 sections in the MPA 2004 and almost all
sections describe how doctors should act, how medical practice should not harm
the patients and penal provisions for doctors. There is only one section providing
the legal protection for doctors. Section 50 (a) states that "doctors deserve to
obtain legal protection while carrying out duties in accordance with professional
5
Supreme Court Decision No. 79 PK / PID / 2013 of 2014 (Putusan Mahkamah Agung Nomor 79 PK/PID/2013 Tahun 2014)
6
standards and standard operating procedures"7 The section unfortunately does not
explain further the form of legal protection provided for doctors.
It is a problem when the MPA 2004 (Undang-Undang No. 29 Tahun 2004
Tentang Praktik Kedokteran) itself does not provide a clear legal protection to be
applied. The MPA 2004 also becomes controversial since it contains criminal
sanctions which seem not appropriate to medical profession.8 Some doctors
actually do not understand well about malpractice violations that are not described
in this Act.
The increase in lawsuit against doctors has decreased the public trust upon
them. The lawsuits filed to the doctors were caused by the patients assuming that
the diseases may not be cured because of doctors’ failure.Doctors only try to give medical treatment based on the knowledge, and the failure in the implementation
of medical science is not always associated with the failure in medical treatment.9
How to protect doctor? Various legislations which govern health matter
seems to be unfair for doctors. Unclear regulations create confusion and could
harm the doctors.
7
Section 50 of the MPA (pasal 50,Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran)
8
Sri Siswati, 2013, Etika dan Hukum Kesehatan dalam Perspektif Undang-Undang Kesehatan, Jakarta; PT Raja Grafindo Persada, p. 22
9
This research on the legal protection for doctors aims to improve the
protection that is too weak. There is only one article in The MPA 2004
(Undang-Undang No. 29 Tahun 2004 Tentang Praktik Kedokteran) which contains the
protection for doctors. Even most of legislation in health matter do not favor to
doctors. The law always contains about duty, responsibility, and penal provisions
to them.10
Overlapping in regulations is also the issue to achieve legal certainty. This
will affect the doctors who have been accused for committing medical errors. This
situation has made the legal process take a long time. Therefore, to protect
doctors, The MPA 2004 (Undang-Undang No. 29 Tahun 2004 tentang Praktik
Kedokteran) should be evaluated in order to avoid any improper application of the
Act to the doctors, because the medical practice is a complex issue.11
The threat of litigation may stimulate doctors to avoid any medical action
which potentially creates lawsuit. The doctors tend to choose a treatment whose
risk is less and refer the patient to others in avoiding potential risk. As a result, the
patients will suffer from unnecessary delay of treatments.
10
Sri Siswati, Opcit, p. 22 11
B. Research Problem
Based on the background, some research problems can be formulated as
follow:
1. What is the importance of legal protection for doctors?
2. How does the MPA 2004 (Undang-Undang No. 29 Tahun 2004
tentang Praktik Kedokteran) provide legal protection for doctors?
C. Objectives of Research
1. To study on the importance of legal protection for doctors.
2. To understand how the MPA 2004 (Undang-Undang No. 29 Tahun
2004 tentang Praktik Kedokteran) provide legal protection for
doctors.
D. Benefits of Research
1. Scientific approach: to develop health law science, particularly on
legal protection for doctors.
CHAPTER TWO
LITERATURE REVIEW
A. Legal Protection
Legal protection is the protection provided to subjects of law in the
form of legal instruments - both preventive and repressive, both written and
unwritten. In other words, the legal protection as a description of the function
of law means that law can give justice, discipline, certainty, usability, peace,
tranquility for all human interests in social life.1 Besides, the law provides
certainty and protection for human interests, the law also has to be able to
restore the balance of disturbed social order to its original state.2
The law should respect human rights, provide legal certainty and
produce justice for all people because the law is a form of protection which
would protect the rights of the people.3 Is the protection of the law fair? Is the
agreement between the countries that handed villains useful?4 Points for
punishment can certainly not be out of place for their crimes. This is because
of the need to punish an individual for the sake of the common good.5 But a
person should not be punished formally based on the rule of law which is only
1
Waluyadi, 2009, Hukum Perlindungan Anak, Mandar Maju, Bandung, p. 4 2
Anny Isfandyarie, 2006, Tanggung Jawab Hukum dan Sanksi bagi Dokter Buku 1, Prestasi Pustaka, Jakarta, p. 77
3
Frederic Bastiat, 2010, Hukum Rancangan Klasik untuk Membangun Masyarakat Merdeka, Jakarta, cet.1, p. 25
4
Cesare Beccaria, 2011, Perihal Kejahatan dan Hukuman, Yogyakata; Genta, cet.1, p. 128
5
intended to preserve the interests of social consensus and not to punish.6 That
punishment is the last resort. It is not expected to impose a harsher punishment
than the crime that has been committed.7
According to Mertokusumo, justice in general is highly subjective and
is viewed from parties who received treatments only. In relation to medical
services, justice is close to cases because it is related to the allocation of
resources in health care.8
B. Doctor
According to The MPA 2004 (Undang-Undang No. 29 Tahun 2004
tentang Praktik Kedokteran), doctors and dentists are doctors, specialists,
dentists and dental specialists who graduated from medical or dentistry
education in education institutions both Indonesia and abroad that are
recognized by the Government of the Republic of Indonesia in accordance
with the legislation.9 Doctors are health workers or medical personnel who are
licensed to practice medicine as a doctor, surgeon, dentist, or veterinarian.
Chapter I (General Provisions 1.11) of The MPA 200410 mentioned
that the notion of the medical profession is as follows:
"Profession of medicine or dentistry is a medical or dental profession carried out by a scientific, educational competencies acquired through a continuous education, and a code of ethics that is serving the community".
6
Ibid p.130 7
Siska Elvandari, 2015, Hukum Penyelesaian Sengketa Medis, Penerbit Thafa Media, Yogyakarta, p. 256
8
Anny Isfandyarie, Opcit, p. 78 9
Section 1 (2) of the MPA 2004 (Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran pasal. 1 (2))
10
From the formulation contained in the MPA 2004 (Undang-Undang
No. 29 Tahun 2004 tentang Praktik Kedokteran), it is clear that the doctor is a
carrier of the medical profession which must also have the characteristics of a
profession as a carrier of the profession in general.11
A doctor is someone whose job is to treat people who are ill or
injured. When written as a title, the abbreviation of doctor is “Dr”. A doctor who performs medical operations is called a surgeon. The most senior type of
doctor in a hospital is called a consultant. Someone being treated by a doctor
or nurse is called a patient.12
According to Black’s Law Dictionary, a doctor means to prescribe or
treat medically or to treat as a doctor or physician.13 Doctor can also be a
learned man; one qualified to give instruction of the higher order in a science
or art, particularly, his art of faculty, as a doctor of laws, medicine, or
theology. In colloquial language, however, the term is practically restricted to
practitioners of medicine; i.e. physicians, surgeons.14
From the above description, we may arrive at conclusions that as the
carrier of the profession, the doctor is the one who holds expertise and skills in
medical science that is independently capable of meeting the needs of people
who require services. In addition, doctors should also be able to decide for
11
Anny Isfandyarie, 2006, Opcit, p. 23 12
Macmillan Dictionary, http://www.macmillandictionary.com/dictionary/british/doctor_1 accesed on monday, 25 th May 2015. at 04:00
13
Hanry Campbell Black, 1990, Black’s Law Dictionary, the United State of America, West Publishng Co, p. 481
themselves what action to do in carrying out his profession and personally
responsible for the quality of given services.15
Doctors are those who ru n health practices that hold authority under
applicable regulations.16 Doctors have a duty to attempt to treat the patient and
not guaranteed to cure the patient. When a patient comes to a doctor for
treatment, but then his condition is worse, it would make sense that doctors
are not doing well in the treatment or they may have been negligence in the
practice. The Indonesian Medical Association (IDI)17 as the main association
of doctors in Indonesia does not agree if any treatment which results in a
negative outcome is simply considered as a malpractice and as a criminal or
civil violation.18 The doctors are really easy to be trapped and be sued in a
medical malpractice. In this problem the doctor is one of the medical
professions who were harmed by the lack of regulation related to medical
malpractice.19
C. Medical Practice
According to Black’s Law Dictionary, the term medical is defined as;
pertaining, relating or belonging to the study and practice of medicine, or the
science and art of the investigation, prevention, cure, and alleviation of
15
Anny Isfandyarie, Opcit, p. 25 16
Syahrul Machmud, 2008, Penegakan Hukum dan Perlindungan Hukum bagi dokter yang diduga melakukan Medikal Malpraktek, Mandar Maju, Bandung p.10
17
Ikatan Dokter Indonesia 18
Hendro Soewono, 2005, Malpraktik Dokter, Surabaya; Srikandi, p.22 19
disease.20 Medical personnel broadly defined in the Internal Revenue Code
(IRC 213) and more comprehensive in regulation.21 While according to The
MPA 2004 (Undang-Undang No. 29 Tahun 2004 tentang Praktik
Kedokteran), medical practice is a set of activities carried out by doctors and
dentists to patients in carrying out treatment.22 While Section 39 of the MPA
2004 states that:
"The medical practice is held based on an agreement between the doctor and patient in efforts of health maintenance, disease prevention, health improvement, treatment of illness and rehabilitation of health ".
The agreement between a doctor and patient in health services or
medical services is commonly known as informed consent. It is the first step
of the medical profession to take action of medical or health services. A doctor
must fulfill administrative requirements first before performing the medical
treatment, such as registered in the Indonesia Medical Council (Konsil
Kedokteran Indonesia) and get a license in the practice.23
Medical practice is guided by medical ethics and medical
science. Medical ethics require medical personnel or doctors to consider
properly the specific situation of each patient, possible implications for
patients in certain situations and provide alternative options.24 Medical ethics
20
Hanry Campbell Black, Black Law Dictionary, 1990, Negara Serikat, West Published Co, P. 982
21 ibid 22
part 1 (1) of the MPA 2004 (Undang-Undang No.29 Tahun 2004 tentang Praktik Kedokteran, bagian 1 ayat 1)
23
Syahrul Machmud, Opcit, p. 25 24
see Raanan Gillon, "Imagination, Literature, Medical Ethics and Medical Practice”,
regulate the relationship between doctors and patients.25 In addition to medical
ethics, there is also medical science which has an important function in the
medical practice. Medical science is the main function to make medical
practice better, by improving existing ways of helping people – especially, but not limited to, sick people – to better health, then the objective of helping individual people, become embedded within the very purpose of medical
science.26 Thus to achieve a good medical practice, it needs the guidance of
medical science and medical ethics.27
D. Medical Malpractice
According to John D. Blum, medical malpractice is a form of
professional negligence in which measurable injury occurs to a plaintiff
patient as the direct result of an act or omission by the defendant
practitioner.28 While, according to Stedman’s Medical Dictionary, a
malpractice is a mistreatment of a disease or injury through ignorance,
carelessness of criminal intent.29
According to Coughlin’s Dictionary of law, a malpractice is a
professional misconduct on the part of a professional person, such as a
physician, engineer, lawyer, accountant, dentist, and veterinarian etc.
Malpractice may be the result of ignorance, neglect, or lack of skill of fidelity
25
Cecep Triwibowo, 2014, Etika dan Hukum Kesehatan, Yogyakarta, Nuha Medika, p.29 26
Raanan Gillon, Op cit 27
ibid 28
Syahrul Machmud, Opcit, p. 14. 29
in the performance of professional duties; intentional wrongdoing; or unethical
practice.30
Definition of malpractice by WMA (World Medical Association):
“Medical malpractice involves the physician's failure to conform to the standard of care for treatment of the patient's condition, or a lack of skill, or negligence in providing care to the patient, which is the direct
cause of an injury to the patient.”31
A medical malpractice is a medical negligence. A malpractice
according to the Anglo Saxon concept, has given yardsticks of negligence
known as the "4-D" of Negligence, which is composed of the following
elements: Duty; Dereliction of that duty; Direct causation; and Damage.32 The task of the doctors comes from the fact that there is a relationship between
doctors and patients.
In that connection, if the doctors made a mistake and could cause in
disability or death or anything else that is harmful to the patient then it is
called a malpractice, if the error did not result in adverse effects on the patient
then it is not a malpractice. A simple example is a doctor who prescribes the
wrong dosages to certain drugs. If the error is revealed before the patient
actually took the medication, no losses. According to the MPA 2004
(Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran) section 51 (b)
Doctors and Dentists have the right on legal protection in carrying out the
30
Guwandi, 2004, Hukum Kedokteran, Jakarta; Balai Penerbit FKUI, p. 23 31
WMA,“World Medical Association Statement on Medical Malpractice”, 2016, http://www.wma.net/en/30publications/10policies/20archives/m2/, accessed Friday, 19th August 2016 at 09.20PM
32
medical practice, according to professional standards and standard
operating procedures.33 Based on this section, medical personnel provide treatment based on professional standards and the standard operating
procedures (SOP).34 If they do not follow that and cause disability and death,
it will probably lead to the occurrence of malpractice.
Malpractice is not a legal term, this term is not used in the legislation.
Not only malpractice but also other medical cases are difficult to determine in
the Act and section which are arranged on the matter. If there is uncertainty
terms on that matter, the problem in the protection to doctors are not solved
yet.
Malpractice is a term that has a bad connotation, is stigmatic, bad
practice of a person who holds a profession in a general sense. Not only it is
addressed to the medical profession but also it is addressed to other
professions. If it is addressed to the medical profession, it should also be
referred as a medical malpractice. But somehow especially in overseas
malpractice is always associated to the medical profession.35
1. The Causes of Medical Malpractice
Based on the understanding of experts about malpractice above, the
main factors of malpractice are their fault element in the form of
33
Section 51 (a) of the MPA 2004 (Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran pasal 51 (a)
34
Safrowi 2010, “Perlindungan Hukum Terhadap Profesi Dokter Terkait Dugaan malpraktek Medik”, Skripsi, UIN Syarif Hidayatullah, Jakarta, 2 nd September 2010, p. 2
35
negligence or culpa. Culpa is an assortment of errors as a result of less
cautious so that inadvertently a malpractice occurs by medical
personnel. While careful action according to its levels is divided in 4 (four)
levels, namely:
a. Very careful;
b. Not so careful;
c. Less careful;
d. Careless.
In the criminal law theories of negligence or culpa itself, it is
divided into 2 (two) categories, namely:
a. Culpa Levissima, means a light negligence;
b. Culpa Lata, means a gross negligence.36
According to experts, negligence has several elements. Vos and
Van Hammel found culpa has two (2) elements, namely (1) the possibility
of estimations of the effect; (2) Not to be careful about what is done or not
done.37
36
Mustafa Abdullah dan Rubben Ahmad, 1983, Intisari Hukum Pidana, Jakarta: PT. Ghilma Indonesia, p. 43
37
2. The Theory of Malpractice
Lately, there is a widespread concern of the public about the
problem of criminal acts committed by medical personnel (often called
and known as malpractice). The issue of malpractice was originated from
the cases of dr Setyaningrum in 1979,38 dr. Setyaningrum, a general
practitioner, had been prosecuted in criminal trial for causing the death of
her patient, Mrs. Rusmini, due to anaphylactic shock after being given
several injections. In 1982 the Supreme Court decided that the accused
was not guilty and she was released accordingly.39
It should be recognized that medical malpractice cases which is
purely intentional (criminal malpractice) cannot be found in criminal court
as much as regular criminal cases. So it can be concluded that medical
38
In the afternoon, doctor Setyaningrum accepted patients, Mrs. Rusmini (28 years old). Mrs. Rusmini was the wife of Captain Kartono (a member of the Indonesian National Army). Mrs. Rusmini was suffering from pharyngitis (sore throat). "The ancients" if they had not been injected, they did not feel recovered. So, in ancient times many people had any pain or illness, they asked doctors to give an injection both in light or severe illness.
At that time, doctor Setyaningrum directly injected the patient (Mrs Rusmini) with streptomycin.
Streptomycin is the drug that includes a group of aminoglycoside. Streptomycin works by turning off sensitive bacteria, by stopping production of essential proteins that bacteria need to survive.
Streptomycin is useful to treat tuberculosis (TB) and infections caused by certain bacteria. a few minutes later after injection, Rusmini felt nausea and then vomited. Doctor Setyaningrum was aware that the patient was allergic to penicillin. Therefore, she immediately injected Mrs. Rusmini with cortisone. Cortisone is an allergy medication. But, it did not make any changes. The action was actually worsening the condition of Mrs. Rusmini. In emergency situations, doctor
Setyaningrum gave coffee to Mrs. Rusmini, but there was any positive change. Therefore, the doctor gave him an injection ofdelladryl (also allergy medications).
Mrs Rusmini’s condition was increasingly weak, and blood pressure was increasingly low. In an emergency, the doctor Setyaningrum immediately sent the patient to the RSU RAA Soewondo, Pati, about 5 km from the village for treatment. At that time, the vehicle to drive to the hospital is not as easy as the vehicle now. To get a vehicle, it took a few minutes. After fifteen minutes they arrived in RSU Pati, the patient did not survive longer. Mrs. Rusmini died. Kartono captain later reported the incident to the police.
39Muh. Endrio Susila, “Criminal Prosecution of Doctors in Indonesia:
malpractice in a broad sense, can be distinguished in the following
actions:40
a. Intentionally (dolus, Vorsatz, Willens en wetens handelen, intentional)
Intentionally is prohibited by legislation. In other words: medical
malpractice in the narrow sense, for example by deliberately abortion
without medical indication, performing euthanasia,
providing medical letter which contents are not correct, and so on.
b. Unintentionally (Negligence, culpa)
The examples are abandoning the treatment of patients, due to the
negligence of doctors, and it causes the patient’s disease getting worse and then dies.
The differences are more visible if we look at the motives to do, for
example:
a. In medical malpractice (in the narrow sense): the action is done
consciously, and the purpose of the actions had been directed to the
result to be brought about or do not care about the result, although the
doctors knew or should have known that their actions are contrary to
the law, whereas;
b. At negligence: there is no motive or purpose for causing the bad
consequences. The effect could be caused by negligence which is
actually happening out of intention.
40
Arthur F. Sountwick proposes theories about the source of medical malpractice,
namely:
a. Breach of Contract
The first theory explains that the source of medical malpractice actions is
due to the breach of contract. It means that, doctors are under no obligation to
treat someone when there is no a contractual relationship between doctors and
patients. The relationship between doctors and patients occurs if there has
been a new contract between the two parties.
In giving the treatment, doctors have to be careful in delivering the
promise to the patients and families of patients. Because if the doctors may not
fulfill the promise offered before then, as consequences, the patients may
propose legal action in criminal or civil law. Therefore, the doctor never
promised healing, but obliged to do maximum efforts (inspaningverbintenis)
in treating the patients.
b. Negligence
The second theory of the source of medical malpractice is
negligence. Doctors’ negligence must be proved. It is certainly not an easy task for the law enforcement officers to prove that case.
According to Budi Sampurna, medical malpractice cannot be judged
based on the outcome of medical treatment, but the process on medical
treatment. Allegations of medical malpractice should be explored and
analyzed in advance to make sure whether it is medical malpractice or not
ispa ioquitur”(the thing speak for itself) will be employes. The doctors did not
like the term of medical malpractice, but they received negligence term".
Section 50 of the MPA 2004 (Undang-Undang No. 29 Tahun 2004
tentang Praktik Kedokteran), clearly stated that the doctors have rights to
obtain legal protection as long as the medical practice is carried out in
accordance with professional standard and operating standard procedures. In
line with that, the Health Act 2009 (Undang-Undang No. 36 Tahun 2009
tentang Kesehatan) also rules that health workers are entitled to get
remuneration and legal protection when they are carrying out their duties. But
if there is allegation of negligence committed by the doctors in carrying out
their disciplines of medicine then, mediation is the first settlement that should
be taken.
In many cases of medical malpractice, the most difficult thing is to
prove that the standards of service that should be performed by doctors have
been ignored. To prove the negligence of doctors, the courts usually rely on
the explanation from expert witnesses. That`s also the case with the actions of
the nurse or midwife in negligence of implementing nursing care and
midwifery care.41
41
CHAPTER THREE
RESEARCH METHOD
A. Types of Research
Based on the issues that are investigated by researcher, the researcher
will use normative legal research. A normative legal research is a research
through the library. It is related to the principles, norms, rules from legislation,
verdicts, treaties, doctrines, books and newspaper. The library research will
collect data on how the law provides legal protection for doctors based on the
MPA 2004 (Undang-Undang No.29 Tahun 2004 tentang Praktik Kedokteran).
The study will also use cases and statutes approach.
B. Type of Data
In this undergraduate thesis, the researcher will use secondary
data. Secondary data is data collected from existing literature material. Such
as the Constitution, Acts, regulations, books, newspapers, journals and
periodicals, etc. related to the case in the research . Secondary data consist of
primary legal material, secondary legal material and tertiary legal material.
1. Primary legal material
The Primary legal material will be collected through the Acts, court
decisions, legislations and International Convention.
Secondary sources will be collected from the draft Act, research
reports, newspapers, books, journals, internet, and other previous
studies associated with this research.
3. Tertiary legal material
Tertiary source will be collected from dictionaries and encyclopedias.
C. Data Collection
The data will be collected through library research and interview of
expert. Normative research is conducted by collecting data of the Act, court
rulings, regulations, international conventions, the draft Act, research reports,
newspapers, books, journals, internet, and previous research related to the case
in research, dictionaries and encyclopedias.
Interviews will be conducted by interviewing experts and scholars who
will tell testimony and/or opinions on the cases in this undergraduate thesis.
Experts and scholars will give testimony and/or opinions based on their
expertise. Testimony and/or opinions of experts and scholars will help
researcher to find and conclude the case in this undergraduate thesis.
D. Data Analysis
This research used descriptive qualitative analysis. The data is
processed and analyzed qualitatively, analyzing the data based on its quality
and will be described and arranged so as to produce a clear and systematic
data. The researcher gives a description on this controversial topic, on legal
protection for doctors based on the MPA 2004. The researcher also makes a
CHAPTER FOUR
FINDING AND ANALYSIS
A. The Importance of Legal Protection for Doctors
In November 2013, almost all doctors involved in a demonstration
as a protest on the court decision to dr. Ayu and her two colleagues’ case. From Jakarta, Semarang, Klaten, Malang, Manado and Papua, almost
all doctors did this demonstration. This demonstration was conducted by
doctors because of the unjust and unsuitable punishment given to dr. Ayu
and her two colleagues. dr. Gabriel, one of demonstrators stated that "They
(society) do not know what is malpractice and we are not angels".1 dr
Ayu’s case showed that doctors felt so aggrieved by the process of the trial
of dr. Ayu and her two colleagues. They felt that the decision made by the
court was not fair. They felt the doctors have been criminalized.
Although a form of legal protection has been granted by the MPA
2004, the protection provided is not comprehensive yet. Therefore, the
doctors still consider that there is uncertainty of law in proceeding the
doctors. Negligence by doctors is very difficult to be proved. In fearing
and worrying about the lack of legal protection for doctors, the necessary
is legal certainty which is born by the reform the MPA 2004
(Undang-Undang No. 29 Tahun 2004 tentang Praktik Kedokteran). Legal certainty
1Ika, “Dokter Ayu Dipenjara, Ratusan Dokter Gelar Demo Solidaritas”,
is required in determining the appropriate punishment for violations of the
code of ethics, crimes, or other medical disputes. Legal protection for
doctors will make doctors feel comfort in giving their treatment to the
patient. A protection for doctors also helps them gain access to justice and
remove fears of legal threats.
In the paragraph below, the researcher will show the importance of
legal protection for doctors. There are three reasons why it is important for
doctors to have legal protections. They are as follows:
1. The medical malpractice accusations are extremely stressful
Doctor is a very noble and respectable profession in society. A
doctor had finished the education and training that is long enough before
conducting medical practice or medical services. Related to this, it was
widely reported in the national mass media, both printed and electronic,
that there were many cases of medical malpractice. This news makes
doctor worry and fear. If doctors do not help or give treatment, it is
considered wrong according to the law, but if they help their patients they
will face the risk of litigation. Patients usually think that negative outcome
is a form of medical negligence. Because of that, patients or their families
will sue doctors.
For example, Rappahannock hospital in the city of Kilmarnock,
Virginia, United States, on March 2003, was forced to reject a pregnant
This is done because the Rappahannock hospital is bankrupt because of
too many malpractice suits assessed millions of dollars. As a result, 1.5
million people do not get the Kilmarnock obstetric care of the hospital.
The hospital losses reached $ 940 million because of huge damage awards
in the lawsuit. Four lawsuits were filed between 2000-2002. The court
order in one case detailed a settlement of $ 365,000 in a $ 3 million suit
filed in 2002 in the case of a baby who suffered an injury during the birth.
Such talk should not come to the hospital in Indonesia.2
Another example, in Singapore, for anesthesia, the doctors use
sophisticated equipment to monitor the patient during anesthesia and the
surgery until the patient regained consciousness. That sophisticated tools
are not available in many hospitals in Indonesia.3 If then there is patient
dies, the doctors will be sued. Whether the doctor is willing to perform
anesthesia without pulse oximetry can be said as "unstandardized work" or
hospitals should be closed because the facilities are not standard?4
The increasing knowledge and awareness of the society
responsibility for their own health, is resulting in a shift in the prevailing
paradigm. At the first, the focus on the ability of doctors themselves is
now shifting toward the science capabilities of the healers. This shift
causes the raising of people’s awareness to demand their balanced
2
See Frank Delano, “The free Lance-Star”, published Des 21, 2003,
https://news.google.com/newspapers?nid=1298&dat=20031221&id=8zMzAAAAIBAJ&sjid=3gg GAAAAIBAJ&pg=6843,5119474&hl=en accessed January 23, 2016, at 08.34AM
3
Anny Isfandyarie, Opcit, p. 198 4
relationship between doctor and patient, where the patient is no longer
fully surrender to the doctor.5 This causes of increasing a lawsuit against
the doctors on malpractice and other medical disputes when patients find
treatment from a doctor is not in accordance with the expectations.
In line with that, patients often have a presumption that if they do
not heal is a doctor’s negligence in performing medical acts. This paradigm is gaining by the increasing reports on medical malpractice. This
situation is also worsened by the incompleteness of the legislation about
the standards of medical services which gave birth to the legal uncertainty
about the level of a doctor's negligence.6
Accusations of medical negligence cases against doctors are true if
the doctor has violated standard operational procedures and other
standards that have been defined. Even the doctors who were very
professional and their practice has conducted in accordance with
established standards but nonetheless they are still sued for malpractice.7
Approximately, 80% of the medical malpractice suits against the doctors
were not settled through internal mechanism in hospital, but they tend to
go to court.8
5
Ibid,p. 90
6Bagus Tri Adikarya, “Perlindungan Hukum Bagi Dokter Melalui Reformasi Standar Pelayanan Kedokteran Berdasarkan Prinsip Kepastian Hukum”:hukum student journal ub, 2015, hlm.1 http://hukum.studentjournal.ub.ac.id/index.php/hukum/article/download/1023/1012accessed Monday, 11 May 2015. at 11.10PM
7
Safrowi, 2010, Perlindungan Hukum Terhadap Profesi Dokter Terkait Dugaan Malpraktek Medik, Skripsi, UIN Syarif Hidayatullah, Jakarta
8
Serious legal threats make doctors should always be successful in
carrying out a medical procedure. Doctors must be very careful because an
error in operation or errors in other medical action will directly be alleged
as medical malpractice9. Most people do not know what medical
malpractice is.10 This issue will have an impact on disrespecting of health
law itself.11It can weaken the performance and image of the doctors.
Accusations of malpractice and other medical practices case would
harm doctors and other health professions. Doctors should perform their
profession with confidence without the burden of doubt in the treatment of
patients in achieving optimal results. But in fact, although doctors have
been doing medical practice very carefully and confidently, there is still a
possibility of medical risks, which one of them is negligence.12
The threat of law that makes the doctors uncomfortable in carrying
out their duties will affect the quality of their services and mistakes can
happen. Errors occur in health care as well as every other very complex
system that involves human beings, because “toerr is human”. It is natural to make mistakes. It should not be too harsh with someone who makes a
mistake, because all human beings make mistakes. The message in "to err
9
Ibid, p. 244 10
Anny Isfandyarie dan Fahrizal Afandi, 2006, Tanggung Jawab Hukum dan Sanksi Bagi Dokter, Jakarta; Prestasi Pustaka, p. 5
11
Nusye KI Jayanti, Penyeselesaian Hukum dalam Malapratik Kedokteran, Pustaka Yustisia, Yogyakarta
12
is human" was that preventing death and injury from medical errors
requires dramatic, wide system changes.13
Doctors are just professionals who do all they can, in accordance to
established standards without guarantees that it would cure the patient, but
they have an obligation to do all efforts to try to maximally cure the
patients (inspanningverbintenis). 14
A doctor who has knowledge and high skills in the field of
specializations actually uses their knowledge for the benefit of patients
without being influenced consideration to seek personal gain. However,
dissatisfaction of patient on the efforts to be cured by doctors may lead the
doctors to court. Although in the end, the claim of the patient is not
proven, but the doctor's name was already contaminated.15
2. Differences in Perceptions of Medical Malpractice
In Indonesia, in case of dr. Setyaningrum that occurred in January
1979, there are two different expert opinions. One side expressed that
dr. Setyaningrum act in accordance with the procedures and standards of
medical practice which is well adapted to its term and the area of work in
health centers which is far from complete health care center. On the other
hand, stated that dr. Setyaningrum has negligently caused the death of her
13
See Molla Sloane Donaldson, “An Overview of To Err is Human: Re-emphasizing the
Message of Patient Safety” March 28, 2011, http://www.ncbi.nlm.nih.gov/books/NBK2673/ Accessed January 4, 2016, at 2.57pm
14
Inspanningverbintenis (engagement efforts) is an obligation/effort commitment: contractual obligation that a party must make an effort. There may default case when that party's efforts inadequate, there is no obligation to achieve the result.
15
patient, due to anaphylactic shock after being given several injections.
Thus, in the court of the first instance and the court of appeal, the judges
said that dr. Setyaningrum had violated good medical practice standard.
But in a cassation examination, the Supreme Court rectified the decisions
of the lower courts. The Supreme Court decided that the accused was not
guilty and she was released accordingly.16 The Supreme Court decision
was formulated based on the expert opinion which was contrary with the
previous decision.
From the brief description above we can see the difference of
opinion from several experts about what caused the failure of the medical
services that have been performed by doctors, whether it is categorized as
medical risk or medical malpractice17. Misunderstanding and difference of
opinion on outcome of medical malpractice becomes a nightmare of
doctors to achieve justice.
The outcome of malpractice is also part of the responsibility of the
hospital (respondeat hospital liability). In the search for a solution to the
problem of negligence or error, it has to do with the approach to medical
problems through the law, commonly called medicolegal.18
There is no definition of medical malpractice in the MPA 2004
(Undang-Undang No.29 Tahun 2004 tentang Praktik Kedokteran) as well
as in the Health Act 2009 (Undang-Undang No.36 Tahun 2009 tentang
16
Muh. Endrio Susila, Opcit, p. 448 17
Syahrul Machmud, Opcit, p. 5 18
Kesehatan). The meaning of malpractice is found in Section 11b of the
Health Act 1963 (Undang-Undang No.6 Tahun 1963 tentang Tenaga
Kesehatan) which is no longer valid. The Health Act 1963 explains that
medical malpractice means neglecting the obligation which means not
doing something that should be done.19
Malpractice is divided into two categories based on the type of
error involved. If the error contains the rules of conduct, it is categorized
in ethical malpractice, and if it contains elements of the rule of law, it is
categorized as legal malpractice.20
Nusye KI in her book found that
the medical error is not a criminal offense or breach of contract.21
Doctors may not intentionally cause harm to the patient. Problems
arise when doctors are prosecuted because of medical malpractice. It has
been acknowledged that there are certain forms of medical malpractice
which amount to criminal liability. However, in practice, it is not easy to
determine which case can be tried criminally and which case cannot. Even
though medical malpractice is a common term, many people, including the
law enforcement officers. are still confused with this term.22
Until now, medical law in Indonesia has not been able to formulate
independently, thus the definition on medical malpractice cannot be
formulated. Thus, for the contents of the understanding and the limits of
19
Syahrul Machmud, Opcit, p. 22
21
Ibid, p.100 22
medical malpractice, the expert still have different perspective, it depends
on the point of view.23
The law should define medical malpractice, thus it will create
certainty on the matter. Moreover, regulations on the legal protection of
the doctors should be clear, detailed and can be easily understood by the
public. This is a very serious issue. If the doctor who is not guilty should
be jailed for his alleged violation of medical malpractice, although the
sentence may not be harsh, but it will defame the doctor. The obscurity of
this Act would also hurt the doctor who always has the instinct to treat
patients. It is very unfair if the good will of a doctor should face legal
threats that are not suitable.
3. The application of health laws and medical dispute resolutions cannot be
implemented properly
Anny Isfandyarie observes some obstacles in relation to the
enactment of the MPA 2004 which is then followed by the Minister of
Health Regulation No. 1419/Menkes/Per/X/2005 on the Implementation of
Medical Practitioners and Dentists as the implementing regulations of the
MPA 2004.24 The MPA 2004 emphasizes only the protection of patient
safety and introduces harsh punishment to doctor.25
23
Siska Elvandari, 2015, Hukum Penyelesaian Sengketa Medis, Yogyakarta, Thafamedia. p. 137
24
Anny Isfandyarie, Loc. cit 25
The MPA 2004 regulates the matter of the delegation of authority
from doctors to nurses. But that matter has resulted problems. The
delegation of authority from doctors to nurses, especially related to the
implementation of the surgery in the village that does not have a specialist
makes patients and doctors more difficult to receive and give treatments.
Section 14 paragraphs (1) and (2) of the Minister of Health
regulation 2005 (PERMENKES RI No. 1419/menkes/per/x/2005), states
that:
a. Doctors and dentists may give the authority on their behalf to a
nurse or another healthcare professional in form of written
permission for performing patient care.
b. The action mentioned above has to be done by considering the
capability of nurse and in accordance to the law.
Some hospitals in villages that do not have anesthesiologist are
under the responsibility of the general doctor. Before the enactment of the
MPA 2004, a general doctor is "courageous" to take responsibility to face
any possible failure in anesthesia. Thus, there is no obstacle to the
treatment of patients who require surgery, although a general practitioner
does not have the competence to perform anesthesia. Nurse anesthetist also
supports the "courageous" a general practitioner, because they've got the
training and education for giving anesthesia and handling complications
when the MPA 2004 applies, some general doctor did not dare take the
risk, while the nurse anesthetist are also unwilling to do his job if the
instruction to do anesthetic does not come directly from doctors who have
competence in the field of anesthesia.
This is related to the sanctions in section 78 of the MPA 2004
which stated:
"Everyone who utilizes tools, methods or other means to provide treatment to the people who give the impression as if the person concerned, is a doctor or dentist who has had a doctor registration letter and dentist registration letter or practice license referred in article 73 paragraph (2) shall be punished by imprisonment of five (5) years or a maximum fine of Rp. 150.000.000, - (one hundred and fifty million rupiah)."
Meanwhile, the numbers of anesthesiologist in the village are
limited. Many of them only provide services in the city. The limitation on
the practice of granting licenses of the maximum just three (3) places have
made anesthesiologist could not practice in many villages.
The consequence of the phenomenon above, is that surgical
procedures in villages that were usually handled by a joint operator with
the nurse anesthetist, after the enactment of the MPA 2004, the patients are
obliged to be referred to health care facilities that have anesthesiologist.26
As a result, the patients are treated late.
In addition, the MPA 2004 also does not put terminology of
medical malpractice. It makes every expert have their own perspective
26
about medical malpractice. The absence of the law makes it become more
complicated and something which is scary because law enforcement has
always interpreted medical malpractice as a criminal offense. The
available legal system allows doctors involved in medical malpractice to
be easily trapped into criminal prosecution. Nevertheless, criminal
prosecution against doctors brings about some negative impact within the
realm of health services. One of the disadvantages of criminal prosecution
is the practice of defensive medicine.27
Medical practice is very complex. Law enforcement officers are
difficult to prove the presence of medical malpractice. In order to achieve
justice the disputes should be resolved in the appropriate institutions such
as MKDKI.
According to Nusye KI Jayanti, the health law is an independent
branch of law and should be placed within the category of lex specialis.
Therefore, the settlement of medical disputes in civil and criminal courts
which employ Civil Code or Penal Code are not appropriate.28 The use of
Civil Code or Penal Code causes the humiliation against health law and
health professions, and the development of the health sector in Indonesia.29
Most cases of medical malpractice reported in the media involve
bodily injury and many of the injured patients brought their cases under
27
Muh. Endrio Susila, Opcit, p.439-458 28
See Nusye KI Jayanti, 2009, Penyelesaian Hukum dalam Malpraktik Kedokteran, Yogyakarta, Pustakan Yustisia. p. 14
29
criminal proceedings. They did so for several reasons. Some were so
disappointed with the accident that they resort to the exercise of criminal
liability to express their disappointment, while those who positively
thought about preventing future accidents employ criminal liability with
the aim of deterrence. Criminal proceedings have also been opted by
medical malpractice lawyers to avoid the difficulty in proving a doctor’s
negligence if the case is brought to the civil court. The possibility to bring
the medical malpractice cases to the criminal court and the fact that many
victims of medical malpractice cases come to the police have stimulated
the public in Indonesia to presume that medical malpractice cases are a
criminal matter rather than a civil matter. 30
Mohammad Hatta highlights that a medical malpractice has
frequently been qualified as a crime and therefore people are confused
about the scope of medical malpractice.31 For further explanation, basically
a medical malpractice is a doctor’s misconduct in executing the profession. It should be judged based on the standard of the profession. Professional
misconduct does not always amount to legal liability, either civil or
criminal liability.32
Syahrul Machmud suggests that medical malpractice which
amounts to criminal liability should be distinguished from the ordinary
crime. In a medical malpractice case, the law enforcement officers should
30
Muh. Endrio Susila, Opcit, p. 448
31
Ibid, p. 439-458 32
pay more attention on the element of doctor’s negligence instead of
damage. Negligence in the medical malpractice context should mean the
failure to comply with the accepted standard of practice. Hence, even
though the patient suffers from serious damage after undergoing medical
treatment, the doctor will not directly be liable unless it is proven that the
damage is caused by the doctor’s negligence.33 Damage resulting from
medical treatment does not necessarily make the doctor liable criminally.34
On the other hand, Mudakir Iskandarsyah points out the specific
procedure to be applied in a medical malpractice prosecution. He suggests
that criminal prosecution against a doctor in medical malpractice cases
requires a report (aduan) from the victim/injured patient. It means to say
that the law enforcement officers may initiate criminal litigation without
request from the injured patient.35
Amir Ilyas states that even though a criminal charge can be
made against a doctor who commits negligence, it still becomes the
subject of debate since there is opinion stating that a doctor can only be
prosecuted criminally when he commits an intentional act such as stealing
organs from or poisoning his patient.36
A settlement through litigation is incompatible with our Indonesia
indigenous culture which emphasizes more on settling disputes through
mediation. Basically, the doctors always do their effort to try to cure the
33
Ibid, p. 449 34
Ibid, p. 439-458 35
Ibid, p. 450 36
patient by treating patients. In fact, some of them did errors. Driving
medical dispute cases to criminal issues will produce more psychological
barrier to doctors in treating the patients. In the MPA 2004 which made
very clear in section 1 number 14, which stated:
"The Medical Disciplinary Tribunals (MKDKI) is the competent institution to determine whether there is an error of doctors and dentists in the application of the disciplines of medicine and dentistry, and determining the sanctions".
The section shows that the MKDKI has more competences to
determine whether a doctor has conducted malpractice or not. Once again
the court of justice is not competence to determine the disciplinary
violence committed by the doctors. This is as evidence that the health law
is a law that has the characteristics of lex specials.37
The Health Act 2009 provides another resolution of health
personnel who commits negligence. In this Act, the first settlement is
through mediation. So, there are two options that can be selected by the
parties involved (patients and doctors) to resolve this issue, whether
through MKDKI or a mediation.
In fact, if there is a medical dispute, the patients usually bring the
case to the court. They neglect the existence of the MKDKI and processes
that have been described in the MPA 2004. As explained previously, the
MKDKI is the assembly that has the authority to determine whether there
37
