JRSSEM 2022, Vol. 01, No. 10, 1682 – 1692

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v1i10.175 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

DOCTOR'S CIVIL RESPONSIBILITY IN MEDICAL

MALPRACTICE IN INDONESIA

Nurarafah

Universitas Malikussaleh

e-mail: nurarafah@unimal.ac.id

*Correspondence: nurarafah@unimal.ac.id

Submitted: 24 April 2022, Revised: 08 May 2022, Accepted: 18 May 2022

Abstract. In the perspective of civil law, medical malpractice is an unlawful act (onrechtmatige

daad) in accordance with the provisions of the Civil Code (Burgerlijk Wetboek). This study aims to

analyze the civil liability of a doctor in medical malpractice in Indonesia. This type of research is

legalistic, doctrinal or normative. Based on the results of the study, a lawsuit against the law in

medical malpractice is regulated in Article 1365 Burgerlijk Wetboek (BW) with elements such as the

patient having to suffer losses, mistakes or negligence (other than private persons, hospitals). may

also be liable for errors or omissions). negligence of employees), there is a causal relationship

between loss and error, the act violates the law. In addition, the form of the doctor's liability in acts

against the law of medical malpractice based on Article 1365 BW can be in the form of material

and immaterial compensation to patients.

Keywords: action; against the law; medical malpractice; Indonesia.

Nurarafah

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DOI : 10.36418/jrssem.v1i10.169 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

INTRODUCTION

All Indonesian people have the right to

get quality health services. certain religions

and groups. This attitude is very much

needed to maintain the quality of health

services and to increase public trust in

hospitals and doctors in Indonesia, so as to

reduce the number of patients seeking

treatment abroad.

In order to protect the rights

mentioned above, the government issued

Law no. 36 of 2009 concerning Health, Law

no. 29 of 2004 concerning Medical Practice

and Law no. 36 of 2014 concerning Health

Workers. The law serves as a basis or

guarantee to the public that the

government has carried out the

constitutional mandate and is serious

about managing and improving the quality

of health services in Indonesia.

Quality health services are based on the

implementation of medical practice in

every health service unit throughout

Indonesia. In order to create a good legal

relationship between patients and doctors

or other health workers, health services are

based on therapeutic agreements.

Therapeutic agreement is an agreement

made between doctors and health workers

with patients, in the form of a legal

relationship that gives birth to rights and

obligations for both parties (Broderick,

2020).

Therapeutic agreements must be made

by competent people. The recipients of

medical services are patients, while the

providers of medical services are doctors

and health workers. Therapeutic

agreements have an object, namely

medical services or healing efforts. The

lawful cause contained in the Therapeutic

Agreement is where the purpose of the

healing effort is the maintenance and

improvement of health which is oriented on

the principle of kinship, including activities

to improve the quality of health

(promotive), disease prevention

(preventive), disease cure (curative), and

health restoration (rehabilitative) (Rock &

Degeling, 2015).

However, in carrying out their

obligations, doctors may make mistakes or

omissions when carrying out their

profession which is known as medical

malpractice. Medical malpractice can be

done either consciously or unconsciously.

In the public's view, every practice or

professional work of a doctor that causes

harm is as if the doctor is still at fault,

without assessing how the subjective

(inner) factor of the doctor influences his

actions. In fact, the view of medical

malpractice cannot only judge the form of

the doctor's actions and their

consequences without assessing the

elements of the inner attitude of the

perpetrator (Ahmad, 2011).

It differs from the general public view

that an assessment of a doctor's actions

starts from the result or is based on the

effect. However, this view exceeds the

meaning of the language, which in a literal

point of view is solely based on bad actions.

Meanwhile, the community sees it in terms

of consequences bad, then judge on the

medical form of the doctor. Therefore, it is

a bad result, so the doctor's actions that

produce the result become bad

(despicable) actions (Goodenough, 2010).

The view of medical malpractice can

also be seen from the point of view of the

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doctor's obligations being violated, where

there is no medical malpractice without any

violation of the legal obligations carried out

by doctors in the doctor-patient

relationship. This view is correct, because

there can be no medical malpractice if it is

not in a doctor-patient relationship, which

means that there is a right and obligation

relationship between a doctor and a patient

in a therapeutic contract where the doctor's

law is then violated (Astuti, 2017).

Doctors' mistakes in carrying out health

services can be prosecuted based on

unlawful acts.A doctor's action can be

categorized as an unlawful act, if the doctor

who is supposed to make maximum

healing efforts and does not deviate from

the specified standards, but in carrying out

the medical service the doctor makes an

error in the form of negligence or

carelessness resulting in harm to the

patient.In the concept of civil law, unlawful

acts are regulated in Article 1365 of the Civil

Code where unlawful acts that can result in

harm to others, are burdened with civil

responsibility to provide compensation.

This provision can be used to sue hospitals,

doctors or other health workers . Therefore,

this study will analyze the civil liability of a

doctor in medical malpractice in Indonesia.

METHODS

This type of research is legalistic,

doctrinal or normative. According to Rowe,

normative research aims to find, explain,

study, analyze and systematically present

facts, principles, concepts, theories, laws so

as to find new knowledge and ideas to be

suggested into a change or renewal (Rowe,

2009). In this study, all documents,

references, facts, theories, doctrines and

laws related to health will be reviewed,

especially those related to unlawful acts in

medical malpractice.

The approach used in normative or

legalistic research can be in the form of a

concept approach, astatute approach, legal

history (historical approach), a case analysis

approach (case approach) and a

comparative approach to law (comparative

approach) (Diantha & SH, 2016). However,

this study only uses a legal or legal

approach because this study analyzes the

civil liability of doctors in medical

malpractice Indonesiain. 36 of 2009

concerning Health and other related laws.

RESULTS AND DISCUSSION

Nowadays, the term malpractice is

gaining popularity in the medical field,

there is even a tendency to associate it

directly with the medical field. Whereas the

meaning of malpractice also occurs in other

professions such as the profession of

lawyers, advocates, judges, accountants,

journalists, police and others. Malpractice is

a term that always has a bad impact, is

stigmatizing and contradicts the rules that

have been set.

The term malpractice was first used by

Sir William Blackstone in 1768 (Perin, 2018).

Medical malpractice comes from the word

malpractice or mala praxis which meansbad

practice (Pinto et al., 2012). According to

Coughlin, former President of the New York

State Bar Association in his book

"Dictionary of Law", malpractice is defined

as (Jamjoom & Davis, 2019):

Professional misconduct on the part of

a professional person, such as a physician,

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engineer, lawyer, accountant, dentist or

veterinarian. Malpractice may be the result

of ignorance, neglect or lack of skill or

fidelity in the performance of professional

duties, intentional wrongdoing or illegal or

unethical practice.

The bad action is an act that deviates

and is not in accordance with the

regulations that have been set. The word

malpractice is common and all professions

can use this term. If this term is associated

with the word doctor or medical profession,

it becomes medical malpractice or medical

malpractice.

According to John D. Blum medical

malpractice as a form of professional

Negligence in which measrable injury

occurs to a plaintiff patient as the direct

result of an act or defedant by the

commission practitioner(Healy, 2011).

Meanwhile, the formulation that occurs in

the world of health is professional

misconduct or lack of ordinary skills in the

performance of professional act. A

practitioner is liable for damages or injuries

caused by malpractice (Shakeri et al., 2013).

According to Stedman's medical

dictionary, medical malpractice is one way

to treat a disease or injury, because it is

caused by an indifferent attitude or action,

indiscriminately or based on criminal

motivation. In the case of Valentin lwn.

Society se Bienfaisance de Los Angelos,

California, 1956 formulated that medical

malpractice is the negligence of a doctor or

nurse to apply the level of skill and

knowledge in providing treatment and care

services to a patient which is usually

applied in treating and caring for sick or

injured people in the area the same (Fries,

2020).

From the several definitions of medical

malpractice above, all scholars agree to

define medical malpractice as a doctor's

health because it does not use the

knowledge and skill level in accordance

with professional standards which

ultimately results in the patient being

injured, disabled or died.

Based on the research that has been

done, there are three most dominant

aspects that are not carried out by doctors

so that doctors have the opportunity to be

sued for medical malpractice actions,

namely doctors violating medical

professional standards, operational

standards, and doctors in caring for

patients who do not give informed consent.

So according to the author's view, the

notion of medical malpractice is the action

of a doctor in carrying out his duties not

based on medical professional standards,

standard operating procedures and not

carrying out informed consent so that these

actions result in patients being injured,

disabled or dead (Hatta, 2018).

However, there are some authors who

say that it is difficult to distinguish between

medical negligence (negligence) and

medical malpractice (malpractice) (Smith,

2010). There are those who argue that it is

better for malpractice to be considered

synonymous with professional negligence.

Indeed, in the literature, the use of the two

terms is often used interchangeably as if

they mean the same thing. According to J.

Guandi, medical malpractice is not the

same as negligence. Negligence is indeed

included in malpractice, but in malpractice

there is not always an element of

negligence. Malpractice has a broader

meaning because in the act of malpractice

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there are actions that contain elements of

negligence (culpa) and intentional

(intentional). While the meaning

negligence is an action that is not

intentional or negligent, careless, does not

care about the interests of others and the

consequences of these actions are not the

goal. The resulting consequences are due

to negligence that actually occurred

against the will of the perpetrator.

A. Types of Medical Malpractice

As a professional group, the

medical profession is not enough just

to be regulated based on a medical

code of ethics, but doctors in their

duties need a legal basis so that health

workers performing medical services

can be protected. In addition, if the

doctor makes a mistake such as medical

negligence or medical malpractice, the

doctor can be sued in court and the

patient gets compensation from the

doctor or the hospital. Therefore, errors

in the medical profession are regulated

in two instruments, namely medical

malpractice in ethical and legal aspects.

Scheme: Types of Medical Malpractice in Indonesia

In the aspect of criminal law,

doctors' mistakes can be seen in

aspects of medical services which are

caused by intentional or negligence

that can result in someone dying, being

disabled or injured. seen in unlawful

acts or defaults in carrying out

therapeutic agreements between

doctors, hospitals and patients or

patients' families. In addition, the

medical profession can also be

prosecuted under state administrative

law relating to medical practice permits

and so on.

Civil malpractice occurs when there

are things that cause non-fulfillment of

the contents of the agreement (default)

in therapeutic transactions by health

workers, or the occurrence of unlawful

acts (onrechtmatige daad), causing

harm to patients. Violations of the

medical profession according to law

Civil law is based on two legal grounds,

namely default (Article 1239 of the Civil

Code). In this case the doctor does not

fulfill his obligations arising from the

existence of an agreement (contractual

responsibility).

Malpraktik Medik

Dalam Aspek Etika

Malpraktik Medik /

Kelalaian Medik

Malpraktik Medik

Dalam Aspek Hukum

Malpraktik Medik

Dalam Aspek Hukum

Pidana

Malpraktik Medik

Dalam Aspek Hukum

Perdata

Malpraktik Medik

Dalam Aspek Hukum

Adminstrasi

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In a literal sense, it is a bad

performance which basically violates

the content/agreement in an

agreement/contract by one of the

parties. The forms of violations in

default are as follows:

1. Not giving any achievements at all

as agreed.

2. Delivering performance that is not

as it should be, does not match the

quality or quantity that was

promised.

3. Delivering achievements but not

being on time as promised.

4. Delivering other achievements than

promised.

From the therapeutic transaction

which is inspanning verbentenis where

the obligations or achievements of

doctors that must be carried out on

patients are medical treatment that is

as good as possible and as carefully as

possible in accordance with medical

professional standards or standard

operating procedures. Therefore, a

doctor's default occurs because he

violates medical professional standards

or standard operating procedures so

that he does not provide medical

services to patients properly, and/or

provides achievements that are not in

accordance with the patient's medical

needs.

B. Doctor's Civil Responsibilities in

Medical Malpractice Acts

Article 77 of Law Number 36 of

2014 concerning Health Workers

stipulates that "Every recipient of health

services who is harmed due to errors or

negligence of health workers can ask for

compensation in accordance with the

provisions of the legislation". Every time

health services will be carried out, it

requires approval in the form of a

therapeutic agreement from the patient

for examination by a doctor or other

health worker. In this case, there will be

a legal relationship between the doctor

and the patient which is carried out with

a sense of trust from the patient

towards the doctor, which is called a

therapeutic transaction.

As usual, the legal relationship

between one party and another

according to the provisions of Article

1233 of the Civil Code is born because

of an agreement or because of the law.

If the hospital, doctor and patient in the

health service is carried out on the basis

of an agreement between them, the

rights and obligations between the

hospital and the patient should be

stated in an agreement, including the

choice of settlement if there is a dispute

between them. If there is one party who

is considered to have violated the

promise, namely doing it but being late,

doing but not in accordance with the

agreement, doing what is prohibited or

not doing it at all, the party who feels

aggrieved can sue in court.

In certain circumstances, such as a

patient in an emergency situation, the

doctor can provide assistance without

the agreement of both parties.

Handling by this doctor if it makes the

patient recover, of course, it will not

cause legal problems. However, if the

handling of the patient causes harm,

such as getting sicker or even dying, the

doctor has an obligation to provide an

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explanation to the patient and his

family about the medical action taken.

If a doctor performs a medical action

that is contrary to existing medical

operational standards, the

consequence is a civil lawsuit.

In the aspect of civil law, medical

malpractice can be carried out based on

Article 1365 of the Civil Code. Article

1365 of the Civil Code stipulates that

any unlawful act that results in harm to

another person, obliges the person who

committed the act to compensate for

the loss. This provision can be used to

sue hospitals, doctors or other health

workers.

An assessment of whether an act is

an unlawful act is not sufficient if it is

only based on a violation of the rule of

law, however, the act must also be

assessed from the point of view of

propriety. The fact that someone has

violated a rule of law can be a factor of

consideration to assess whether the act

that caused the loss was appropriate or

not with the propriety that a person

should have in association with fellow

citizens.

The terminology of unlawful acts is

a translation of the word

onrechtmatigedaad, which is regulated

in the Civil Code Book III concerning

Engagement, Article 1365 to Article

1380. Some scholars use the term

'violate' and some use the term

'against'. Subekti also uses the term “

acts that violate the law. Meanwhile,

Wirjono Projodikoro uses the term

"unlawful act" by saying that the term

onrechtmatige daad in Dutch usually

has a narrow meaning, namely the

meaning used in Article 1365 of

Burgelijk Wetboek and which only

relates to the interpretation of the

article, while now the term unlawful act

is aimed at to laws that generally apply

in Indonesia and most of which are

customary law. The terminology of

unlawful acts according to Mariam

Darus Badrulzaman refers to Article

1365 of the Civil Code which stipulates

that any unlawful act that causes harm

to another person obliges the person

because of his mistake in publishing

this loss to compensate for the loss.

This civil law is very important because

through this article the unwritten law is

considered by the law.

Sri Soedewi Masjchoen Sofwan and

IS Adiwimarta in translating their book

HFA Vollmar also used the term

unlawful act. In addition, the

terminology of unlawful acts. MA

Moegni Djojodirdjo said that Article

1365 of the Civil Code does not provide

a formulation but only regulates if a

person who has suffered a loss due to

an, which was committed by another

person against him, will be able to file a

claim for compensation at the District

Court. unlawful act Violating the Law,

according to MA Moegni Djojodirdjo,

the word "against" has active and

passive characteristics. When Mariam

Darus Badrulzaman mentions positive

and negative traits.

The concept of unlawful acts in

Indonesia has been included in a

codified law book, namely the Civil

Code. The concept of unlawful acts in

Indonesia which is part of Continental

European law is regulated in Article

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1365 of the Civil Code to Article 1380 of

the Civil Code. In these articles the form

of responsibility for unlawful acts is

divided into: First, responsibility is not

only for actions against the law itself

but also for acts against the law of

others and against goods. Article 1367

paragraph (1) of the Civil Code states

that a person is not only responsible for

losses caused by his own actions but

also due to the actions of people who

are his dependents, or caused by goods

under his control. In addition, Article

1367 paragraph (1) of the Civil Code is

a general formulation, so responsibility

is divided into:

1. Responsibility for the actions of

others

a. Responsibility for actions

committed by people who are

their dependents in general.

b. The responsibility of parents

and guardians towards children

who are not yet adults (article

1367 paragraph 2 of the Civil

Code).

c. The responsibility of the

employer and the person who

represents his affairs to the

person he employs (article 1367

paragraph 3 of the Civil Code).

d. Responsibilities of school

teachers and head craftsmen

towards students and craftsmen

(Article 1367 paragraph 4 of the

Civil Code).

2. Responsibility for goods under

control.

a. Responsibility for goods in

general (article 1367 paragraph

1 of the Civil Code);

b. Responsibility for animals

(article 1368 of the Civil Code);

c. The owner's responsibility for

the building (Article 1369 of the

Civil Code).

Second, unlawful acts against

the human body and soul. Article

1370 of the Civil Code states that in

the event of intentional killing or

negligence, the husband or wife,

children, parents of the victim who

usually earn a living from the

victim's work, have the right to

claim compensation which must be

assessed according to the

circumstances and wealth of both

parties.Third, acts against the law

against the good name. The issue of

humiliation is regulated in Article

1372 to Article 1380 of the Civil

Code. Article 1372 states that claims

for insults are aimed at obtaining

compensation and restoring good

names, in accordance with the

positions and circumstances of the

parties. Some of the claims that can

be filed for unlawful acts are:

a. Compensation in the form of

money for the losses incurred.

b. Compensation in kind or

returned in its original

condition.

c. A statement that the act

committed is against the law.

d. Prohibit certain actions from

being carried out.

In the aspect of civil law, according

to the law, every responsibility must

have a basis, namely things that cause

a person's legal right to sue another

person as well as a matter that gives

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birth to the other person's legal

obligation to provide accountability.

then the responsibility here is the

responsibility of the doctor in relation

to his professional duties.

From this responsibility, there will

be consequences on the one hand.

With a heavy responsibility, a

professional will try to respect his

profession. On the other hand, there is

an assumption that in order to

minimize the risks and responsibilities,

doctors become hesitant or worried in

carrying out their duties. This is because

doctors see that if there is an error in

carrying out the profession, there will

be legal consequences in the form of

liability from the doctor.

In the civil lawsuit process, it can be

ascertained that the responsibility of

doctors to patients is almost all related

to demands for compensation.

Meanwhile, a lawsuit based on an

unlawful act is caused by a doctor's

actions that are contrary to the

principles of propriety, thoroughness

and caution that are expected of him. in

his association with fellow citizens

(responsibility based on law).

Based on the law, the relationship

between health workers refers to Article

1365 BW, Article 1366 BW, and Article

1367 BW. Article 1365 BW regulates

acts against the law which stipulates

that the loss to another person means

that the perpetrator who caused the

loss is obliged to claim compensation

for the loss. To determine a doctor is

responsible and make compensation,

there must be a relationship between

the error and the loss caused by the act.

In Article 1366 BW determines that

a person is not only responsible for the

losses caused by himself, but is also

responsible for the actions of people

who are under his responsibility or

caused by goods that are under his

supervision. If in carrying out medical

services, other medical personnel who

are under the supervision of a doctor

are the responsibility of the doctor in

the event of a medical error.

Article 1367 BW is used for the

doctor's responsibility for people who

are under his supervision. Completely a

person is not only responsible for the

losses caused by himself, but also

responsible for the actions of people

who are under his responsibility or

caused by goods that are under his

supervision. In this regard, a doctor

must be responsible for the actions

taken by his subordinates, namely

nurses, midwives, and so on.

Acts against the law as discussed

above illustrate that responsibility is

due to an error on the part of the

doctor, causing harm to the patient,

both material and immaterial losses. In

the judicial process, in addition to

proving the doctor's treatment deviates

from professional standards, it is also

necessary to prove the harm caused by

the deviant treatment of the doctor

himself. Basically, medical treatment

that deviates from professional

standards and the existence of losses

are cumulative elements that must exist

in every medical malpractice.

Meanwhile, immaterial losses such as

loss of hope of recovery, prolonged

feeling of suffering or pain, loss of

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certain body parts, memory loss, loss of

vision, injuries and even death of the

patient.

In medical malpractice which is

against the law because of its nature,

the will is often directed at the form of

the act and not the result. Culpa is

usually only focused on the result. The

harm to the patient is not desired.

operational procedures or at least

contrary to normal general practice in

the medical world. There are

differences in losses that can be

prosecuted through unlawful acts and

defaults. unlawful acts in addition to

material losses, also ideal (immaterial)

losses that are not material in nature,

but the value of the object can be

estimated based on appropriateness or

propriety.

The value of the loss that can be

sued/sued on the basis of an unlawful

act is not determined by law. The

plaintiff can determine the value of the

ideal or material loss on the basis of his

own estimate. Then the judge will judge

according to feasibility, especially in the

case of an ideal loss. Any kind of loss

caused by an unlawful act can basically

be prosecuted, except for an

illegitimate interest. Likewise for a loss

in medical services that is not solely

caused by the actions of the doctor, but

there is a strong influence from the

patient's own actions. The causal

relationship of civil law is used to

determine the existence of a loss by an

act in an effort to compensate the guilty

maker. the existence of a causal

relationship between the act and the

loss due to an unlawful act is one of the

essential elements. In the doctor-

patient relationship, the patient's

physical and psychological suffering

can only enter the realm of civil

malpractice if there is a causal

relationship between the doctor's

service and the consequences.

CONCLUSIONS

Medical malpractice is one of the most

widely reported crimes in the media, both

in print and electronic media. Medical

malpractice does not only involve doctors

but also involves other health workers. In

fact, the hospital where the doctor works

and other health workers can also be sued

in court if they make a mistake that results

in harm to the patient.

In the aspect of civil law, a lawsuit

against a doctor in court can be based on

an unlawful act (onrechtmatige daad)

based on Article 1365 BW. Article 1365 BW

stipulates that every act against the law that

brings harm to another person, obliges the

person who, because of his fault, published

the loss, replaces the loss. An unlawful act

is defined where one of the parties has

committed an unlawful act because his

actions or actions are contrary to the

principles of propriety, thoroughness and

prudence, especially in this case an

agreement or agreement between a

patient and a doctor. Compensation, there

must be a close relationship between the

error and the loss caused.

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