Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/aelr P-ISSN: 2723-2484
E-ISSN: 2745-9330
Implementation of Litigation Mediation in Resolving Medical Negligence Disputes Between Patients and Health Workers
Daffa Ladro Kusworo1, Maghfira Nur Khaliza Fauzi 2
1 Pengadilan Tinggi Tanjung Karang, Indonesia Email: [email protected]
2Pengadilan Tinggi Tanjung Karang, Indonesia Email: [email protected]
Article’s Information Abstract keywords:
Medical Negligence, Litigation, Mediation.
DOI :
https://doi.org/10.25041/aelr.v4i1.2858
Negligence in current medical disputes has not yet obtained legal settlement efforts for both parties, either between the patient, the medical staff, or the hospital. Efforts to resolve medical disputes can be done through two methods: litigation and non- litigation mediation. Determining a dispute resolution model with alternative efforts will minimize doctors' worries as well as stimulate medical personnel to improve the health system and existing errors will become an evaluation of health services later, especially also preventing doctors, patients and other parties from being confronted until a court decision actually damages a person's reputation. doctor. Apart from that, it is also an effort to relieve patient conflict, making it possible for patients undergoing treatment to receive reasonable compensation. Medical disputes should emphasize settlement through the ADR route because it not only provides benefits for both parties but also obtains legal guarantees from each party in court in Indonesia. Because when compared to dispute resolution outside the court, litigation mediation offers more integrative offers because it does not require high costs, takes a long time, and does not incline any party by upholding a win-win solution. This study uses a normative legal research method with a statutory and literature study approach and uses descriptive analysis by applying a deductive method. The results of the Submitted: Jan 10, 2023; Reviewed: Feb 02, 2023; Accepted: Feb 13, 2023
study show the effectiveness of the implementation of litigation mediation and penal mediation reform in the criminal law system in Indonesia.
A. Introduction
From a legal perspective, the relationship between patients and medical personnel is based on an agreement that contains medical services in the context of healing patients. The emergence of an engagement in the medical scope is known as inspanning verbintenis, which is an engagement accompanied by preventive measures so as not to cause medical errors that lead to side effects on health services. J. Guwardi stated that doctors in treating patients are faced with the ambiguity between “possibility” and “uncertainty”, because the human body cannot always be fully understood because it is complex. Doctors only try their best but cannot ensure healing as expected. Moreover, there is diversity for each patient in terms of age, disease, and history of complications that patients sometimes don't disclose. Therefore, the uncertainty of the treatment results emphasizes that doctors continue to prioritize the precautionary principle according to their competence. Because if there is an error caused by negligence or intentional, it will risk harming the patient, even worsening the patient's illness.
Especially in deconstructionist intellectuals influencing the patient's perspective in assessing the quality of doctors.1
Medical staff must understand the importance of upholding human rights (HAM), particularly in health and take extra care to monitor patients' conditions as they receive treatment. The public's awareness of the various current health issues makes it difficult for medical staff to serve patients according to their whims. When looking back at ancient times, the pattern of paternalistic relationships established between physicians and patients underwent gradual changes, leading to equality where physicians and patients were no longer in a superior position to one another but were in the same ranks.2
Additionally, because each hospital's standardization of health professional services differs, there is no clear benchmark, making it challenging to identify malpractice by negligence in the industry. The terminology of the patient is changed to that of a consumer or client when using services due to changes in how the doctor-patient relationship is conceptualized. Even though there are times when this connection does not prioritize the patient's best interests, it still leads to an imbalance of power and knowledge on both sides.
Additionally, current technological disruptions provide health information, seemingly influencing doctors' choices.3
The first involves Josua Situmorang, who passed away following the extraction of a tooth by drg. Didi Alamsyah. Joshua experienced bleeding during the extraction of his upper molars by an oral surgeon at Fatmawati General Hospital, South Jakarta. The family believes this was the cause of his demise. The two cases of S.H. Siregar from Permata Bunda Medan General Hospital in February 2017 involved a tonsillectomy that left the patient with abnormalities in their nasal passages. Three obstetricians were involved in the three cases, and a panel of judges at the District Court cleared them of all charges in 2011. Their names were Drs. Dewa Ayu Sasiary Prawani, Hendry Simanjuntak, and Hendy Siagian. The Republic of Indonesia's Supreme Court handed down a 10 (ten) month prison sentence. The Supreme Court of the
1 Dedi Afandi, “Mediasi: Alternatif Penyelesaian Sengketa Medis,” Majalah Kedokteran Indonesia 59, no. 5 (2009).
2 Riska Andi Fitriono, Budi Setyanto, and Rehnalemken Ginting, “Penegakan Hukum Malpraktik Melalui Pendekatan Mediasi Penal,” Yustisia Jurnal Hukum 5, no. 1 (2016).
3 Ewaldo Ewaldo, “Alternatif Penyelesaian Sengketa Medis Melalui Mediasi” (Bandung: Universitas Bhayangkara Jakarta Raya, 2012).
Republic of Indonesia received a Judicial Review from the three doctors. In its Judicial Review decision No. 79 PK/Pid/2013, it found them not guilty and granted them acquittal.
Early in 1979, Doctor Setyaningrum dealt with four cases. Dr. Setyaningrum saw Mrs.
Rusmini (28 years old), who had pharyngitis, at the Wedarijaksa District Health Center in the Pati Regency of Central Java (sore throat). Streptomycin, a medication typically used to treat infections brought on by specific bacteria and tuberculosis (TB), was immediately injected into Mrs. Rusmini by Dr. Setyaningrum. A few minutes later, Rusmini felt sick and then vomited. Doctor Setyaningrum realized that his patient was allergic to penicillin. He immediately injected Mrs. Rusmini with cortisone. This action only worsened Mrs. Rusmini's condition. In a critical condition, doctor Setyaningrum drank coffee for Mrs. Rusmini.
However, there are still no positive changes. The doctor gave another injection of delladryl (also an allergy medicine). Mrs. Rusmini was getting weaker and her blood pressure was lowering, and she finally died.
From the case examples above, the authors also obtained data on medical disputes in the Pringsewu area, Lampung, within a period of 10 years, namely from 2002-2012, a total of 19 cases. Where the case resulted in doctors and hospitals being exposed to a lawsuit. Out of 19 cases, 1 case was resolved through criminal justice, and eighteen cases were resolved out of court (mediation). However, sometimes even though the hospital/doctor has considered it finished outside the court, a dispute still occurs.
In fact, the occurrence of medical negligence has not yet resulted in a legal settlement that is equitable for all parties, including the patient and the medical staff or the hospital. This relationship involves a treatment effort through the Standard Operational Procedure, not just ensuring recovery (SOP). It's possible that there will always be at least two parties, the plaintiff and the defendant, in any civil case where negligence or error occurs.4 The relationship between a doctor and a patient is centered on legal issues, with legal issues regulated explicitly in the rules of civil law from a legal perspective. In this situation, medical disputes typically stem from patients' complaints about the care they receive from hospitals, doctors, and other medical staff. These complaints can be brought on by a number of different things, including:
1. Increasing public education about the world of health, directly arouses curiosity about their rights and being able to convey what they know
2. The public's high expectations for doctors are in line with the growing knowledge and infrastructure of health services, as well as the expansion of health information in various media today
3. Healthcare costs are getting higher and more commercialized, so people want perfect services
4. Provocation by legal experts and medical personnel, which is an expression of dissatisfaction with services marked by violations that contain elements of unlawful acts in the practice of the medical profession, results in patients experiencing harm. Often there is an assumption that doctors do not fulfill or violate the context of therapeutic agreements and that violations lead to ethical, disciplinary, administrative, or legal violations within the scope of criminal or civil law.
In examining the provisions above, if they are related to civil law, then the forms of civil and professional responsibility for health workers are referred to in Articles 1365, 1366 and 1367 of the Civil Code. These three arrangements can be related to medical personnel being accountable for their profession, as stated in Article 1366 of the Civil Code:
4 Sahuri Lasmadi, “Mediasi Penal Dalam Sistem Peradilan Pidana Indonesia,” Inovatif| Jurnal Ilmu Hukum 4, no. 5 (2011).
“Everyone is responsible not only for losses caused by his actions, but also for losses caused by negligence or carelessness.”5
Starting with obligations based on the agreement establishing the rights and obligations of the parties involved, negligence generally has several criteria. Not to mention the changes that must be made to the type of achievement in these actions to conform to inherent norms and professional standards. When the agreement is carried out, it can be considered medical negligence if it causes the patient to suffer material losses, such as giving him fatal side effects that prevent him from engaging in his regular activities, as well as immaterial losses that result in emotional instability for the victims. Finally, the causal relationship states that the patient's harm is connected to the doctor's actions. Referring to negligence in the medical world from a legal perspective, there is a conflict of interest between each party who seeks justice together. In reality, one party feels injustice in resolving medical disputes.
It is simple for patients to demand legal processes because certainty is not always guaranteed in the medical world. Legal resolution of medical disputes typically does not result in success, so if the issue is not resolved in a number of ways, it will result in the sense of injustice felt by patients, their families, and other members of the public who feel disadvantaged, in addition to the harm felt by medical staff. According to Tom Christoffel, medical negligence has a civil scope, similar to medical negligence in the context of criminal law.6
According to criminal law's perspective, medical negligence can be determined by a number of factors, including how well health workers carry out their duties. If it turns out that there has been a procedure violation, negligence has occurred. Additionally, there were violations of their obligations in accordance with their competence because, during the course of the treatment, the medical staff did not know what they should and should not do.7 There is an element of carelessness or negligence in the severe category when there is the appearance of direct harm caused by negligent health workers or even when mistakes are made repeatedly. The standards above guide health professionals to avoid medical negligence, so they must be followed closely to fulfill their duties and decrease disputes involving health services.
The Indonesian Medical Discipline Honorary Council (MKDKI) reported that between 2006 and 2012, there were 182 cases of medical malpractice committed by doctors across several regions of Indonesia. The trials that MKDKI conducted, in this case, allowing for the observation of malpractice. Of the 182 malpractice cases, there 60 cases were committed by general practitioners, 49 cases by surgeons, 33 cases by obstetricians, and 16 cases committed by pediatricians. The remaining cases, which totaled under ten reported instances of various kinds, were under 10 in number. Already, the practice licenses of 29 doctors had been temporarily suspended. Six doctors must complete retraining, some of which are three months long and others are six. On January 16 2013, medical negligence was discussed at the Commission IX Meeting of the DPR RI, which required the Ministry of Health to carry out an agenda for monitoring hospitals as stipulated in Law no. 29 of 2004 concerning Medical Practice, Law No. 36 of 2009 concerning Health and Law No. 44 of 2009 concerning Hospitals aims to reduce cases of medical negligence brought to justice.8
5 Pasal 1366 Kitab Undang-Undang Hukum Perdata.
6 Evalina Alissa and Sasmiar Sasmiar, “Eksistensi Lembaga Mediasi Sebagai Sarana Penyelesaian Sengketa Medis,” Wajah Hukum 5, no. 1 (2021).
7 Niru Anita Sinaga, “Penyelesaian Sengketa Medis Di Indonesia,” Jurnal Ilmiah Hukum Dirgantara 11, no. 2 (2021).
8 Anggraeni Endah Kusumaningrum, “Mediasi Dalam Penyelesaian Sengketa Medis Sebagai Upaya Perlindungan Pasien,”
Jurnal Ilmiah Hukum Dan Dinamika Masyarakat 14, no. 1 (2016).
It is hoped that this conversation with the Ministry of Health will help to fairly resolve cases of medical negligence and impose penalties on medical staff or hospitals following the law. Currently, medical disputes involving patients and healthcare professionals must take medical and legal expertise into account in order to assist patients in raising their expectations for receiving health service results and reimbursement costs from medical personnel and to prevent conflicts between the two parties through consensus dispute resolution. The resolution of cases deemed to be lighter in medical disputes that do not result in death can be accomplished through mediation and payment to the hospital, reflecting the risk of medical services and obtaining the appropriate payment.
There are essentially two ways to settle medical disputes, the first of which is litigation or using the court system. Because a court decision can only determine one case winner, it should be evident that lengthy and expensive court processes are necessary. More specifically, it necessitates a thorough comprehension of the conflict that arises, which basically involves a discrepancy between the patient's expectations and the actual hospital intended for treatment.
The trigger is the contradictory relationship between the patient and the doctor, such as a temperamental patient and the doctor withholding actual disease information.9
Determining a dispute resolution model with alternative approaches will reduce doctors' concerns as well as motivate medical staff to enhance the healthcare system, and current errors will eventually be evaluated as part of health services. This will help to avoid putting doctors, patients, and other parties through a legal process that could harm their reputations.
In addition, it resolves patient conflicts, enabling those receiving treatment to be fairly compensated without going through emotional, financial, and logistical times. In essence, mediation is a form of Alternative Dispute Resolution (ADR) that puts the principle of impartiality first and calls for a third party to serve as the mediator, with the main focus on helping resolve disputes between parties to obtain a voluntary agreement in the dispute at issue.
ADR is essentially more frequently used in civil cases than in criminal cases. Even though the legal document confirms it, some cases that are not frequently encountered in criminal law are still challenging to enforce, especially in light of the fact that criminal cases are rarely resolved outside of court through penal mediation. Thus, mediation continues to be a method of integration in the various stages of the legal system that helps reduce the number of pending cases while enhancing the court's adjudicative role. In actuality, The criminal justice system gave rise to problem-solving as a component of restorative justice, which emphasizes the interests of both victims and offenders. This alternative paradigm is represented by penal mediation. Penal mediation indicators tend to focus more on minor criminal cases when dealing with different medical dispute-related issues, whereas it can be very challenging when doctors' negligence results in a patient's physical disability or death.
However, it has once again become a polemic that medical professionals should uphold their constitutional rights as citizens and that medical negligence cases should result in criminal prosecution.10
The novelty of this study will contribute to the settlement of mediation efforts in medical negligence disputes in the criminal and civil realms, that in the criminal realm requires a reformulation of legal policies that refer to the concept of penal mediation in the United States as a common law country and the civil realm in settlement of pathways litigation based on the applicable laws and regulations. This study uses a normative legal research method with a
9 Wahyu Rizki Kartika Ilahi, “Resiko Medis Dan Kelalaian Medis Dalam Aspek Pertanggungjawaban Pidana,” Jurnal Hukum Volkgeist 2, no. 2 (2018).
10 S.Soetrisno, Malpraktek Medik Dan Mediasi Sebagai Alternatif Penyelesaian Sengketa (Jakarta: Telaga Ilmu, 2010).
statutory and literature study approach and uses descriptive analysis by applying a deductive method. Regarding the source of data used, secondary data comes from various research literature, books, journals, and other legal materials. The Juridical Empirical Approach is carried out through field research, the results of which will be correlated with the principles, regulations and applicable laws and regulations. The data collected and processed above can be analyzed by means of descriptive analysis, which is intended to describe and analyze the data obtained from the research results.
B. Discussion
1. Settlement of Medical Negligence Disputes Through Litigation Mediation Efforts The continuation of the judiciary in its function is connected to the ability to settle conflicts that determine cases through a judge's ruling. However, because the majority of people have the misconception that all types of disputes can only be settled through mediation, it is felt that up until this point, the judgments rendered have not been able to provide the value of justice for both parties involved in the dispute. This presumption is incorrect because there are several methods for resolving disputes in litigation settlement, one of which is mediation, which the court itself facilitates.11 In the Indonesian legal system, the construction of people's thinking in medical dispute resolution is still a relatively new issue because not all lawyers and mediators are aware of how mediation actually works to resolve legal disputes. Mediation is a form of alternative dispute resolution (ADR), also known as alternative problem-solving. The ability of the mediator, as shown by the mediator's certificate, is obviously a determining factor in court-ordered mediation. The mediator can then be described as a facilitator because they can seek points of agreement without coercion from either party and maintain neutrality in the negotiation process of both parties by offering the possibility of dispute resolution.12 According to Safitri Hariani, the characteristics of medical disputes consist of the following:
a. The relationship between doctor and patient in medical disputes;
b. The object of the dispute is the medical process performed by the doctor on the patient;
c. There are material and immaterial losses by the patient in the form of injuries, physical disabilities, or loss of the patient's life;
d. The loss suffered by the patient is solely due to the medical negligence of the doctor, or what is termed medical malpractice; and
e. Not always can health services provide healing based on what is expected of patients and their families, which results in dissatisfaction in pre- and post-treatment which leads to medical dispute conflicts.
In this case, medical disputes place more emphasis on settlement through the ADR channel because it not only provides benefits for both parties but also obtains legal guarantees from each party in court in Indonesia, compared to resolving disputes through the Medical Committee, Ethics and Legal Committee. Hospital (KEHRS) and then the Hospital Supervisory Board can be said that until now, it has not yet aligned its authority to resolve medical disputes. Litigation channel mediation provides more integrative offers because basically it does not require high costs and quite a long time because it puts forward simple principles, fast and light costs, and does not incline to any party in determining who wins and
11 Herman Herman, Abdul Razak, and Marwati Riza, “Gagasan Pengadilan Khusus Dalam Penyelesaian Sengketa Medis Sebagai Upaya Perlindungan Hukum Bagi Tenaga Medis,” Jurisprudentie: Jurusan Ilmu Hukum Fakultas Syariah Dan Hukum 7, no. 1 (2020).
12 Muhammad Afiful Jauhani and Sp F M MH, Dilema Kapabilitas Dan Imparsialitas Dokter Sebagai Mediator Sengketa Medis (Bandung: SCOPINDO MEDIA PUSTAKA, 2020).
loses because basically upholding mutual victory or win-win solution. Even medical dispute mediation focuses more on the main.
Then, in order to meet their needs and control efforts to ensure the realization of legal protection for consumer interests, consumers and producers have certain rights and obligations, which are collectively governed by laws and regulations. According to Janus Sidabalok in his book Consumer protection law in Indonesia, published by Citra Aditya Bakti in 2006, a consumer protection law governs how consumers are protected in order to meet their needs as consumers. The Janus Consumer Protection Law governs consumer rights and obligations, business actors' rights and obligations, and strategies for upholding and fulfilling these rights.
The objective of the parties involved in the dispute is to reach a consensus.13 Referring to Supreme Court Rules Number 1 of 2016, even though it is not a law product, it provides a legal breakthrough to uphold the humanitarian aspect so that the end of a dispute will be replaced by a new atmosphere, namely peace, dispute resolution, on the one hand, is indeed a legal obligation. However, dispute resolution by judges can still determine justice, peace efforts must be enforced so as not to violate the obligations of the civil court to reconcile the two parties.14 Referring to Supreme Court Rules Number 1 of 2016, even though it is not a law product, it provides a legal breakthrough to uphold the humanitarian aspect so that the end of a dispute will be replaced by a new atmosphere, namely peace, dispute resolution, on the one hand, is indeed a legal obligation, even though dispute resolution is by judges can still determine justice, peace efforts must be enforced so as not to violate the obligations of the civil court to reconcile the two parties.15 Specifically, regarding mediation, it is necessary to understand the related aspects of mediation, among others:
a. Aspect of Urgency
Whereas the importance of carrying out mediation aims so that all parties involved in the case do not proceed to cases in court trying to defuse the conflict that other things have been blocking all this time that need to be resolved with a family approach. The main objective of carrying out mediation is to eliminate disputes between parties which have so far, and it has been very difficult to say an agreement when they meet face to face. If the conflicting parties have been passive so far, it will become more open with the procedure for bringing the mediators together with the parties. Later, the mediator will be tasked with facilitating existing problems so that the parties realize that peace is something very important.
b. Aspect of Principle
Based on the regulations regarding mediation contained in Article 2 paragraph (2) Supreme Court Rules Number 01 of 2016, the judge is obliged as a mediator for the parties to comply with the mechanism for implementing mediation in settling cases. If it turns out that there are cases that are not pursued in the settlement procedure through mediation, as in Article 130 HIR and Article 154 RBG that the decision handed down by the judge will be null
13 Supeno Supeno, “Kajian Yuridis Penyelesaian Sengketa Medik Di Indonesia,” Wajah Hukum 3, no. 2 (2019).
14 Susanti Adi Nugroho and M H SH, Manfaat Mediasi Sebagai Alternatif Penyelesaian Sengketa (Jakarta: Prenada Media, 2019).
15 Daffa Ladro Kusworo et al., “Establishment of a National Regulatory Body to Overcome Disharmonization of Natural Resources and Environmental Policies,” International Journal of Multicultural and Multireligious Understanding 9, no. 11 (2022).
and void. This confirms that all civil cases taken at the first level are not allowed to skip the mediation program because it can have fatal legal consequences.16
c. Substance Aspect
A series of mediation implementations is an agenda that needs to be faced in every civil case litigation. The context of mediation needs to be carried out with all seriousness to obtain peace. Because in several provisions, mediation is not a formal legality requirement, but to achieve seriousness involving related parties, this is not in the interest of the judge and the mediator but also the peace of all parties. Moreover, in all cases, costs incurred as a result of the mediation process will not be borne by the parties. Let's explore further, based on Article 32 Letter I Law No. 44 of 2009 concerning Hospitals. Patients have the right to privacy regarding the confidentiality of diseases that have been their suffering, including medical record data. This is reinforced in Article 57 of Law no. 36 of 2009 concerning Health that every patient also has the right to obtain confidentiality of the health situation stated by the doctor according to his profession.
Based on Article 19 Supreme Court Rules No. 1 of 2016, mediation settlement through court legal channels cannot contain coercion on the mediator to provide witness testimony during the mediation implementation.17 Therefore the mediator is also required to eliminate or destroy all records and matters related to mediation if it turns out that they have failed to reach an agreement. The court, in its mediation efforts seeks to deal with dispute issues related to the confidentiality of the mediation process, namely all parties, namely patients and their families, medical personnel and hospitals. Their confidentiality will be guaranteed. All conditions that occur in the implementation of mediation are only for the parties who know the contents of the mediation forum. Then in accommodating medical negligence, it has also been regulated by Article 29 of the Health Law Number 36 of 2009 that first must seek mediation involving medical personnel and patients.18
Therefore, the article shows that the position of the parties in mediation is likened to Customer Care, namely the handling of cases of medical negligence, which is an allegation that must prioritize the function of carrying out mediation because courts sometimes prefer to use the Supreme Court Rules No.1 of 2016 as a product of judicial law. Customer Care can also be referred to as a facility a judicial institution provides to resolve medical disputes. Its role will be to filter cases from a chronology to ease the burden experienced by doctors and patients. Mediation also needs to be adjusted to article 29 of the Health Law Number 36 of 2009, that there is an implementing regulation under it that is at the same level as government regulations which includes a series of procedures regarding Mediation procedures to be a form of Alternative dispute resolution.
In its position, the legal principle of the Health Act occupies a higher position than the Supreme Court Rules Regarding Mediation Procedures in Court. In fact, it often becomes a form of decision-making in court. Reviewing article 29 of Law no. 36 of 2009 is precisely in line with Supreme Court Rules No. 1 of 2016. However, the Health Law is indeed intended by the formation of a mediator outside the court by emphasizing medical negligence that has occurred, the court is not always primarily tasked with and authorized to examine, adjudicate and resolve cases it receives, but is also obliged to seek peace between the parties litigants.
Courts, which so far have the impression of being law enforcement and justice institutions,
16 Dedy Mulyana, “Kekuatan Hukum Hasil Mediasi Di Dalam Pengadilan Dan Di Luar Pengadilan Menurut Hukum Positif,”
Jurnal Wawasan Yuridika 3, no. 2 (2019).
17 Dwi Rezki Sri Astarini and M H SH, Mediasi Pengadilan (Bandung: Penerbit Alumni, 2021).
18 Peraturan Mahkamah Agung Nomor 1 Tahun 2016 Tentang Prosedur Mediasi Di Pengadilan.
are more likely to be an attempt to find common ground in disputes between the parties involved.19
With regard to civil cases in Indonesia, the judicial practice has been fundamentally changed in Supreme Court Rules No. 1 of 2016. Before the case is examined, some things must be done, namely the importance of mediation as an effort to reconcile the parties to the dispute. If, until now the peace process of the parties was carried out in a formality by the judge examining the case, now the panel of judges is obliged to provide a delay of opportunity for the mediators in reconciling the parties in the case. Mediation is carried out between the parties by allocating a special time and space. Parties failing to reach a peace agreement or parties succeeding in reaching a peace agreement are two possible outcomes of the mediation process. If the parties succeed in reaching a peace agreement, Supreme Court Rules Number 1 of 2016 requires the parties to formulate a peace agreement in writing and sign it, expressing their agreement. In writing on the peace agreement, if in the mediation process, the parties are represented by attorneys and return to the judge on the appointed day of the hearing to notify the peace agreement.20
In the event that the parties reach an agreement, apart from the parties, the mediator is also required to sign the peace agreement document. The mediator is obliged to sign the peace agreement document, in addition to the parties in reaching an agreement. However, in signing the agreement document, the mediator's participation cannot be interpreted as the mediator being legally responsible for the agreement's contents. Although the settlement of disputes through court mediation has various advantages, this mechanism is very vulnerable and the probability of failure is high. Trust and willingness or willingness to waive some of the rights of each disputing party are needed to anticipate the requirements that must be met.21
In this regard, Adami Chazawi also believes that not all medical malpractice is included in the realm of criminal law. Three conditions must be met, namely the first is the doctor's mental attitude (in this case, there is an intention/dolus or culpa); secondly, the requirements for medical treatment include medical treatment that deviates from professional medical standards, standard operating procedures, or is unlawful for various reasons, including without an STR or SIP, not according to the patient's medical needs. Meanwhile, the third condition for being able to place medical malpractice under criminal law is the condition for consequences, in the form of causing harm to the body's health, namely injuries (Article 90 of the Criminal Code) or loss of the patient's life so that it becomes an element of a crime.22
Legal officials use articles in the Criminal Code regarding negligence in medical disputes through the criminal process, especially Article 359, to ensnare doctors in their settlements.
This article raises problems because the negligence referred to in this article is not the same as medical negligence. Negligence accused by a doctor may be a medical risk or not, it is negligence. Legal officials have limitations in proving negligence or medical risk. The existing regulations do not formulate medical malpractice and medical risks. This is a weakness of the Criminal Code article in resolving medical disputes, which can be detrimental to doctors and their patients. The difficulty of patients in proving and the tendency of expert statements to defend doctors raises problems in resolving disputes through civil channels. Trials that are win-lose are increasingly tiring because of the lengthy trial process.
19 Dian Maris Rahmah, “Optimalisasi Penyelesaian Sengketa Melalui Mediasi Di Pengadilan,” Jurnal Bina Mulia Hukum 4, no. 1 (2019).
20 Fitra Dewi Nasution and Ferry Aries Suranta, “Penyelesaian Sengketa Perdata Dengan Mediasi Menurut Peraturan Mahkamah Agung Nomor 1 Tahun 2008,” Jurnal Mercatoria 5, no. 1 (2012).
21 “Undang-Undang Nomor 36 Tahun 2009 Tentang Kesehatan (Lembaran Negara Republik Indonesia Tahun 2009 Nomor 144, Tambahan Lembaran Negara Republik Indonesia Nomor 5063)” (n.d.).
22 Ruben Denny Djari, “Urgensi Rancangan Undang-Undang Tentang Mediasi: Terwujudnya Keadilan Dan Kepastian Hukum Bagi Para Pihak,” Jurnal Education and Development 8, no. 1 (2020).
Psychologically, doctors are burdened enough with legal issues that can damage their good name and disrupt medical services.23
If in cases where doctors commit negligence which results in the death or disability of a person, penal mediation in medical negligence cases can also be meaningless because the Indonesian justice system has not regulated that far. There are limitations governing minor crimes, which later can be mediated. The Supreme Court has categorized it in Supreme Court Rules Number 2 of 2012, wherein compensation if the nominal value is below Rp. 2,500,000, then it is required to mediate first. Mediation is generally known as an Alternative form of Dispute Resolution in civil law, but in its development, mediation can be carried out in criminal cases, known as Penal Mediation. Penal Mediation can be used in several criminal acts that are categorized as special. The application of mediation in the settlement of criminal cases aims not only not to prolong a conflict between the perpetrator and the victim but also to assist law enforcement officials in reducing the accumulation of case files. In principle, criminal cases cannot be resolved through a Mediation mechanism. However, in practice, cases involving the criminal realm are often resolved through mediation mechanisms, which are law enforcement initiatives as part of settling cases.
The parties to the dispute will continue to work together to try to come to a mutually beneficial agreement in the future. Of course, this is crucial, given that community opposition to the practice of medicine is a type of legal concern. To fulfill their legal obligations as integrated regulatory products, both formal and material criminal law regarding aspects of medical negligence must occasionally be provided by doctors and all other medical personnel.
The application of penal mediation in the legal system in Indonesia is still fairly common.
Hence, the authors see a comparison of the criminal law system as a solution to solving problems in countries that adhere to the common law system. The United States is an alternative in implementing penal mediation in Indonesia.24
Criminal mediation is part of an alternative dispute resolution between perpetrators and criminal acts which are expected to balance the interests of victims who have suffered losses due to the crimes committed. The Law on Arbitration and Alternative Dispute Resolution in substance only regulates mediation but does not regulate it to be applied to criminal cases. It can be said that settlement through penal mediation is a form of civil dispute resolution.
Otherwise, it is difficult to use in the criminal justice system.
2. Reconstruction of Penal Mediation Mechanisms in Resolving Medical Disputes in Indonesia
It is common in law enforcement practice to accept mediation held by the police first as a complaint offense. This is consistent with Roeslan Saleh's belief that police should be better able to resolve cases processed at the police agency before being sent to prosecutors and judges. There are a number of reasons why criminal mediation should be used in medical cases under Indonesian criminal law. When criminal cases are resolved, there is occasionally a greater propensity to use criminal sanctions. As a result, when they are linked to legal products, more criminal sanctions—such as imprisonment—are stipulated, which over the long term, creates an excessive capacity. The policy of handling crimes committed by perpetrators using a prison sentence approach was ultimately realized by America as the cause of this excess capacity, so legislative policy should be directed to find a solution. Then, efforts to settle conflicts outside of court as a substitute for resolving criminal cases in Indonesia are unknown. If the defendant has paid the maximum fine for the violation and the costs incurred
23 Kitab Undang-Undang Hukum Pidana.
24 Lilik Prihatini, “Perspektif Mediasi Penal Dan Penerapannya Dalam Perkara Pidana,” Pakuan Law Review 1, no. 1 (2015).
if the prosecution has been carried out, Article 82 of the Criminal Code states that claims for rights are waived, and this provision is one of the reasons why the crime has been abolished.25
Criminal law provisions revoke the police's receipt of complaints, and the criminal case is closed. Only if the investigator or public prosecutor continues by issuing a letter of termination of the investigation or prosecution does conciliation have a settlement effect at the level of the investigation or prosecution. Because the judge will still review the case and will not consider the existence of reconciliation between the perpetrator and the victim of the crime as a basis for forgiveness if it occurs while the case is already being tried, even though there has been reconciliation in the complaint offense at the level of investigation or prosecution. If you look at it, the penal mediation system applied in Indonesia is no different from the penal mediation system in the United States. Even though the Indonesian government system adheres to the Civil Law system, in applying Indonesia's penal mediation, it tends to adhere to America, whose government system is Common Law.26
If you take a closer look at penal mediation in the United States, you will see that it was implemented in 29 states up until 2000. These states had VOM (Victim Offenders Committee) programs, and the regulations for these programs covered a wide range of topics, including cost, evaluation, confidentiality, and responsibility. To put it simply, they were a set of alternative punishments. Since Indonesia has thousands of islands in one area, it is possible to put this intricate system into practice and increase the effectiveness of the penal mediation process. First, the criminal justice system, as it is currently implemented in the United States, can use VOM at every level. First, VOM can be used at the investigative level after the investigator has completed their tasks and filed cases, allowing the victims and criminals to meet. The investigator may end the investigation and choose not to refer the case to the public prosecutor if the meeting between the criminal and the victim of the crime results in an agreement documented in an agreement. Second, VOM was implemented following the prosecution by the Public Prosecutor. First, the criminal justice system, as it is currently implemented in the United States, can use VOM at every level. First, VOM can be used at the investigative level after the investigator has completed their tasks and filed cases, allowing the victims and criminals to meet. The investigator may end the investigation and choose not to refer the case to the public prosecutor if the meeting between the criminal and the victim of the crime results in an agreement that is documented in an agreement. Second, VOM was implemented following the prosecution by the Public Prosecutor.27
After the criminal has been found guilty by the court, received a sentence, and gained the status of a convict, VOM is then put into effect. It is anticipated that through interactions between criminals and their victims, prisoners will be less likely to commit the same offenses again after they are released. In addition, VOM will talk about the regrets of the criminals who committed the crimes when convicts and crime victims come together in correctional facilities. Plans to compensate victims and other initiatives to help victims be restored. It also covers the effects of crime on society and how society can be rebuilt through effective social services, which prisoners often carry out. Discussions are also carried out on why convicts commit crimes and what efforts are made so that convicts do not repeat their crimes in the future by emphasizing discussions about the convict's education when he is still a teenager or work that convicts may be able to do after leaving the correctional institution.
25 C S A Teddy Lesmana, “Mediasi Penal Sebagai Alternatif Penyelesaian Perkara Pidana Dalam Perspektif Pembaharuan Sistem Peradilan Pidana Indonesia,” Jurnal Rechten: Riset Hukum Dan Hak Asasi Manusia 1, no. 1 (2019).
26 Adam Prima Mahendra, “Mediasi Penal Pada Tahap Penyidikan Berlandaskan Keadilan Restoratif,” Jurist-Diction 3, no. 4 (2020).
27 Agus Raharjo, “Mediasi Sebagai Basis Dalam Penyelesaian Perkara Pidana,” Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada 20, no. 1 (2008).
The judge who rendered the criminal verdict may take action to reduce the sentence or change the article charged with a lesser crime than those previously charged if VOM is successful in reaching an agreement. Considering the three points mentioned above, penal mediation can be implemented in Indonesia if VOM is already in place in the institutions that will eventually deal with penal mediation-related issues. This is supported by legal documents that will eventually serve as the framework for Indonesia's criminal law reform. So that if a criminal problem arises, the priority is the restorative justice process or a healing process evenly distributed to both the perpetrators, victims, or the community affected by the crimes committed by the perpetrators.
One of the policies is the model for future medical malpractice settlement in Indonesia, which serves as a model for using the Medical Dispute Resolution Institution to settle medical disputes. An institution specifically created to settle medical disputes is the Medical Dispute Resolution Institution. The trial processes and mechanisms employed are quick, exact, and low-cost. This Medical Dispute Resolution Institution is one of the attempts to address particular medical dispute issues. It is the solution to resolving medical disputes perceived as unsatisfactory by the public and patients when they must bring cases before the general court because doctors are difficult to punish and constantly collude with IDI to protect colleagues.
Similar to lawyers, doctors have found the existence of the general justice system to be a terrifying thing because, in addition to having to go through drawn-out mechanisms or procedures, there is a risk of receiving compensation that may be multiples of the honoree's award as well as potential damage to their reputation.
One of the organizations created by law is the Medical Dispute Resolution Institute, whose members include lawyers, academics, practitioners, and members of the medical profession (Indonesian Doctors Association and Medical Council). This institution must be independent because it is an ad hoc judiciary with benefits like its existence, which can be directly controlled or supervised, and its decisions, which are binding and can be carried out immediately. However, since this has to do with the issue of the institution's very existence and continuity, it is important to pay attention to who can join and what/what position members take when they are appointed and dismissed. This is done to prevent the perception that if the appointed member is an internal member of a medical organization, the concern is that they are still defending the interests of their peers rather than the patients. Similarly, it is important to pay attention to the requirements when choosing an advisor because their position is crucial to the success of dispute resolution, where an advisor's insight and experience are required to explain the positions of each party to the dispute.
The Medical Council's role, authority, and powers to regulate and oversee the medical profession, such as the ability to impose sanctions, monitor out-of-date practices, oversee practice quotas, and other activities related to the implementation of medical practice, are expected to diminish with the establishment of this independent institution. This is significant in light of the fact that the Medical Council is likely to devote more attention in the future to the general and specialized aspects of medical education. The Mini Trial Institution is one of the Alternative Dispute Resolution (ADR) forms used in the trial procedures at this institution. In the American business community, mini-trials are a brand-new and incredibly popular form of ADR. This method of dispute resolution is regarded as the most effective and efficient one.
C. Conclusion
In essence, ADR is more likely to be used in civil cases, not criminal ones. Especially considering the fact that criminal cases can hardly be resolved outside the court through penal mediation, even though the legal instrument confirms this, certain cases that are not commonly known in criminal law are still difficult to enforce. Thus, mediation remains a form of integration in the stages of the court process, which functions to overcome the accumulation of cases while simultaneously strengthening the court's function in an adjudicative manner. In practice, penal mediation is an embodiment of restorative justice that emphasizes the interests of victims and perpetrators of crime. This alternative paradigm was born from problem-solving as part of the criminal justice system. In dealing with various issues related to medical disputes, penal mediation indicators are more oriented toward minor criminal cases. In the case of negligence of doctors, which results in physical disability or death of a person, it is considered very difficult. However, it has again become a polemic that doctors are only human beings who need to guarantee their constitutional rights as citizens, and penal mediation must be put forward in medical negligence cases. Indonesia can implement a litigation mediation mechanism in the VOM (Victim Offenders Committee) program. The VOM regulations cover a wide range of topics, including fairly detailed training requirements, concerns about cost, evaluation, confidentiality, and responsibility, as well as more straightforward issues, such as alternative punishment management. Since Indonesia has thousands of islands in one area, it is possible to put this intricate system into practice and increase the effectiveness of the penal mediation process.
D. Suggestion
VOM is a medical dispute mediation concept in the United States that has been running in institutions that will handle penal mediation issues. In this case, it is a concept that can be adapted, later becoming a legal umbrella in Indonesia's criminal law reform. So that if a criminal problem arises, the priority is the restorative justice process or a healing process evenly distributed to both the perpetrators, victims, or the community affected by the crimes committed by the perpetrators.
References
A. Book
Ewaldo, Ewaldo. “Alternatif Penyelesaian Sengketa Medis Melalui Mediasi.” Bandung:
Universitas Bhayangkara Jakarta Raya, 2012.
Jauhani, Muhammad Afiful, and Sp F M MH. Dilema Kapabilitas Dan Imparsialitas Dokter Sebagai Mediator Sengketa Medis. Bandung: Scopindo Media Pustaka, 2020.
Nugroho, Susanti Adi, and M H SH. Manfaat Mediasi Sebagai Alternatif Penyelesaian Sengketa. Jakarta: Prenada Media, 2019.
S.Soetrisno. Malpraktek Medik Dan Mediasi Sebagai Alternatif Penyelesaian Sengketa.
Jakarta: Telaga Ilmu, 2010.
B. Journal
Afandi, Dedi. “Mediasi: Alternatif Penyelesaian Sengketa Medis.” Majalah Kedokteran Indonesia 59, no. 5 (2009).
Alissa, Evalina, and Sasmiar Sasmiar. “Eksistensi Lembaga Mediasi Sebagai Sarana Penyelesaian Sengketa Medis.” Wajah Hukum 5, no. 1 (2021).
Astarini, Dwi Rezki Sri, and M H SH. Mediasi Pengadilan. Bandung: Penerbit Alumni, 2021.
Djari, Ruben Denny. “Urgensi Rancangan Undang-Undang Tentang Mediasi: Terwujudnya Keadilan Dan Kepastian Hukum Bagi Para Pihak.” Jurnal Education and Development 8, no. 1 (2020).
Fitriono, Riska Andi, Budi Setyanto, and Rehnalemken Ginting. “Penegakan Hukum Malpraktik Melalui Pendekatan Mediasi Penal.” Yustisia Jurnal Hukum 5, no. 1 (2016).
Herman, Herman, Abdul Razak, and Marwati Riza. “Gagasan Pengadilan Khusus Dalam Penyelesaian Sengketa Medis Sebagai Upaya Perlindungan Hukum Bagi Tenaga Medis.” Jurisprudentie: Jurusan Ilmu Hukum Fakultas Syariah Dan Hukum 7, no. 1 (2020).
Ilahi, Wahyu Rizki Kartika. “Resiko Medis Dan Kelalaian Medis Dalam Aspek Pertanggungjawaban Pidana.” Jurnal Hukum Volkgeist 2, no. 2 (2018).
Kusumaningrum, Anggraeni Endah. “Mediasi Dalam Penyelesaian Sengketa Medis Sebagai Upaya Perlindungan Pasien.” Jurnal Ilmiah Hukum Dan Dinamika Masyarakat 14, no.
1 (2016).
Kusworo, Daffa Ladro, Maghfira Nur Khaliza Fauzi, Eka Deviani, Nurmayani Nurmayani, Marlia Eka Putri AT, and Satria Prayoga. “Establishment of a National Regulatory Body to Overcome Disharmonization of Natural Resources and Environmental Policies.” International Journal of Multicultural and Multireligious Understanding 9, no. 11 (2022).
Lasmadi, Sahuri. “Mediasi Penal Dalam Sistem Peradilan Pidana Indonesia.” INOVATIF|
Jurnal Ilmu Hukum 4, no. 5 (2011).
Lesmana, C S A Teddy. “Mediasi Penal Sebagai Alternatif Penyelesaian Perkara Pidana Dalam Perspektif Pembaharuan Sistem Peradilan Pidana Indonesia.” Jurnal Rechten:
Riset Hukum Dan Hak Asasi Manusia 1, no. 1 (2019).
Mahendra, Adam Prima. “Mediasi Penal Pada Tahap Penyidikan Berlandaskan Keadilan Restoratif.” Jurist-Diction 3, no. 4 (2020).
Mulyana, Dedy. “Kekuatan Hukum Hasil Mediasi Di Dalam Pengadilan Dan Di Luar Pengadilan Menurut Hukum Positif.” Jurnal Wawasan Yuridika 3, no. 2 (2019).
Nasution, Fitra Dewi, and Ferry Aries Suranta. “Penyelesaian Sengketa Perdata Dengan Mediasi Menurut Peraturan Mahkamah Agung Nomor 1 Tahun 2008.” Jurnal Mercatoria 5, no. 1 (2012).
Prihatini, Lilik. “Perspektif Mediasi Penal Dan Penerapannya Dalam Perkara Pidana.”
Pakuan Law Review 1, no. 1 (2015).
Raharjo, Agus. “Mediasi Sebagai Basis Dalam Penyelesaian Perkara Pidana.” Mimbar Hukum-Fakultas Hukum Universitas Gadjah Mada 20, no. 1 (2008).
Rahmah, Dian Maris. “Optimalisasi Penyelesaian Sengketa Melalui Mediasi Di Pengadilan.”
Jurnal Bina Mulia Hukum 4, no. 1 (2019).
Sinaga, Niru Anita. “Penyelesaian Sengketa Medis Di Indonesia.” Jurnal Ilmiah Hukum Dirgantara 11, no. 2 (2021).
Supeno, Supeno. “Kajian Yuridis Penyelesaian Sengketa Medik Di Indonesia.” Wajah Hukum 3, no. 2 (2019)
C. Regulation
Kitab Undang-Undang Hukum Perdata.
Kitab Undang-Undang Hukum Pidana.
Peraturan Mahkamah Agung Nomor 1 Tahun 2008 tentang Prosedur Mediasi di Pengadilan.
Undang-Undang Nomor 36 Tahun 2009 tentang Kesehatan (Lembaran Negara Republik Indonesia Tahun 2009 Nomor 144, Tambahan Lembaran Negara Republik Indonesia Nomor 5063).
