Legal Literacy - This article reviews the regulations related to medical malpractice in the context of criminal law based on Law No. 17 of 2023. It discusses the background of increasing public awareness of legal claims against medical malpractice and the differences in views between medical negligence and criminal malpractice. This article explains the ambiguity of definitions and limitations of errors in medical malpractice, which causes legal uncertainty and fear among medical professionals in taking action. It also outlines specific regulatory efforts that distinguish errors due to negligence from intentional acts in medical practice, in order to achieve justice for victims and legal certainty for medical practitioners.
Regarding Medical Malpractice and Public Claims
Medical malpractice is generally known as a practice error. The term medical malpractice was initially a foreign term that had never been recognized in Indonesia before. In the 1980s, this term was actually recognized, but it only became very popular in 2003 due to the emergence of the “medical malpractice crisisâ€. The public is increasingly aware that medical malpractice actions can be held legally accountable. Medical malpractice then turned into a legal issue.[1]
As a new issue in the legal realm, it is certainly not easy to place medical malpractice into the construction of Indonesian law. Therefore, it is reasonable that initially this term could not be found in Indonesian laws and regulations (positive law). To find the meaning of “medical malpractice†, first, an approach is taken based on general understanding supported by the opinions of experts regarding the definition of the term. Officials dealing with medical malpractice cases have basically tried to explore similar terms in existing regulations. However, dissatisfaction arose, especially from the medical profession.
PUnderstanding Medical Malpractice
The definition of malpractice was initially taken from the term in English, namely malpractice. Etymologically, malpractice is defined as professional error or professional misconduct. Malpractice is actually a common term and applies to all professional fields. In short, malpractice can be defined as an error caused by a professional during the course of their work. If the error is committed by a medical professional during a medical procedure, it is called medical malpractice (medical malpractice).
Unfortunately, until the enactment of the new health law (Law No. 17 of 2023 concerning Health) since August 2023, medical malpractice does not seem to be clearly regulated. Both the public and the medical profession still believe that the legal regulations related to medical malpractice are not yet ideal. The confusion regarding the boundaries of medical malpractice is then assessed by the public as creating uncertainty.
The Boundary of "Error" in Medical Malpractice Actions
Some experts argue that medical practice is synonymous with the term medical negligence as stated by Creighton, and Mason-Mac. However, other experts such as Guwandi say that medical malpractice is a broader term than medical negligence because it also contains an element of intent. Meanwhile, medical malpractice committed intentionally is called criminal malpractice.[2]
Based on these opinions, it is clear that confusion is beginning to arise regarding the meaning of the term medical malpractice itself. As described above, the difference in meaning in this term by each expert is emphasized on the inner attitude of "negligence" and/or "intentionality" at the time of the medical action. Therefore, in order to avoid confusion in such events, in countries such as Australia, Canada, England, Malaysia, and others, medical malpractice is better known as medical negligence or medical negligence.[3]
Such a variety of understandings, of course, becomes vulnerable to creating uncertainty in the application of the law. The absence of clear boundaries also makes it possible for the general public to tend to judge a medical action rawly as an act of malpractice.[4] As a result, the public easily corners the medical profession because the connotation of the term malpractice has been attached to medical actions, and its nature has seemed very bad. On the other hand, this certainly makes many medical/health workers and/or the medical profession then afraid to commit a medical act because of the fear of facing the law. Looking from the point of view of victims of malpractice, it is also very likely that justice cannot be achieved, because it is possible that an action cannot be subject to criminal law. For example, in the recent case of the swapped babies phenomenon.[5] From the perspective of any legal rule, there will certainly be no rules found related to such events. However, this is actually a natural occurrence because laws are fundamentally unable to precisely and specifically define what losses may one day be caused by medical practices.
Therefore, the author intends to differentiate the inner attitude of "error" as quoted from expert views as a benchmark. In essence, medical actions that cause losses or consequences prohibited by law can be divided into two, namely medical negligence (medical negligence/medical malpractice), and intentional misconduct (criminal malpractice). Thus, if a distinction is agreed upon in these two medical actions, then an approach can subsequently be made to the existing rules.
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