"A Man can't make a mistake can't make anything"

Tuesday, 3 July 2012

LAWSUIT Malpractice (MEDICAL), the old songs with new melodies

 Lately, the worry about the medical world in Indonesia is rising malpractice claims and lawsuits (the amount of compensation that is increasingly spectacular), especially since more people understand the law and the proliferation of NGOs that "care" health. our society into a society that increasingly fond of demanding (litigious society). there a reason?, no definitive answer that should be believed. But clearly, the current world situation the doctor is very similar to the crisis of malpractice (malpractice crisis) ever hit the United States about 40 years ago, that since the doctor is no longer considered to be gods that are no longer immune to any kind of lawsuit. Previous centuries, doctors regarded as a social creature who is above the law based on the doctrine of charitable immunity to the extent that the Americans had no Samarians Law who is helping to ensure that emergency should not be in law, for consideration, to punish doctors and hospitals to pay compensation is tantamount to reducing assetnya, which in turn reduces its ability to help people a lot.

But since the case of Darling v.. Charleston Community Memorial Hospital, 1965, the first case the state hospital as a legal subject and therefore can be used as a target of a lawsuit over the performance of harming patients. So since that's rampant charges against doctors and hospitals.

 According Sofwan (2005) are most important to physicians and hospital managers and owners is to understand first that before the malpractice lawsuit can be proven then any dispute arising between the health care receiver and the new health care provider should be called as a result of the incompatibility of logic conflict over an issue; mainly on the occurrence of adverse events (injury Caused by medical management rather than the underlying condition of the patient). According Winardi (1994), the conflict could be interpreted as a mismatch understanding of the situation of certain basic thoughts or because of emotional antagonisms. Then the various conflicts that plagued the medical world today do not have to panic so it does not need to be taken out of proportion. the positive side of conflict or dispute it can increase creativity, innovation, intensity of effort, group cohesion and reduce internal konplik and enhance friendship. Conflict itself is actually only happen if there preconditions or predisposing factors, such as an adverse events (the gap between the expectations of patients with acquired after the fact does medical efforts). While its trigger factors, among others because of differences in perception, communication styles ambigius or individual that can come from the physicians themselves (ie arrogant) or from the patient such as chronic complainer or a temperamental attitude. High rates can also trigger the emergence of a claim for services is less than perfect. Not infrequently the trigger is coming from a doctor colleague (as a "competitor") or third parties who wish to participate memamfaatkan conflict (fishing in murky water) ..

 MALPRATEK often misunderstood by the public, not just ordinary people instead of people intelekpun media is often wrong and instead meanings are often salah.masyarakat infotaiment often defines malpractice, an action or situation that does not fit with the expectation that did not satisfy his expectations. especially if the condition becomes worse pasen, had sequelae (disability / squele) or died. Though the deteriorating state of pasen often not due to any act of the doctor is often due to complications from his illness and the journey itself. differences in perception, usually due to inability to understand the patient's medical logic that effort is an effort that is full of medical uncertainty and the results can not be calculated mathematically as strongly influenced by other factors beyond the control of the doctor to control it (I.Nasution).; such as durability body, the body's defense mechanisms, the type and level of virulence of the disease, disease stage, quality of drugs, individual responses to drugs and patient compliance in following procedures and doctor's advice. Many people think that the efforts made medical doctors are the only variables that can affect the patient's pain condition that the parameters, if an attempt is correct according to their logic should not the patient's death, his condition worsened, or even new problems arise. In fact the best medical efforts and the most expensive though not necessarily guarantee a cure. by Robert Koch in fact 70% of the disease would be cured themselves thanks to their own body's defense mechanisms of the rest should recover by action or disability or death. many experts who stated "medicine is a science and arts, a science of the uncertainty, the probability of an art".

In addition to inadequate understanding of the nature of medical effort, compounded by the lack of understanding of the law: for example about the shape of the engagement that followed the agreed therapeutic relationship which consequently led to the rights and obligations of the parties. engagement that occurs between health care and health care provider receiver is inspanning-verbintenis (engagement efforts, not the promise of recovery) so that the consequences of the law, doctors are not burdened with the obligation to achieve results (of healing), but only burdened with the obligation to make efforts according to the standard (standard of care), ie a level which reflects the quality of medical services has been the application of knowledge, skill, judgment and attention it deserves, as was done by physicians in general in dealing with situations and the same conditions (Hubert Smith). With this level of quality as it is expected to complete the patient's health problem, but if in fact these expectations do not materialize or occur, or the risk of adverse medical events, not necessarily a doctor or hospital is to blame.

Not many legal experts who understand the law so that the health, quality of the claim is often obscure (obscure libel) because the logic is not supported by medical and legal logic is so very natural that the court's decision is almost always wins the hospital or doctor. they seem to have any adverse event generalize as malpractice. Each adverse event should be analyzed first (remember, not all adverse events are identical with malpractice) and after that then divided whether the case is a criminal case, civil or accident (misadventure). Cases of anaphylactic shock / allergic to the medicine in Pati Java bebes in the middle of the appeal.

In court, the criminal case is the duty of prosecutors to prove compliance with the criminal element consisting of a disgraceful act (actus reus) and the wrong attitude of mind (mens rea) that melatar-backs on the moral turpitude. If found guilty of legal liability (criminal resposibility) is always individual and personal that can not be transferred to other parties. in countries that adhere to the Common Law System was originally put malpractice as a tort (civil wrong againsts a person or properties) so there is no penalty for doctors who perform it malpractice tort. However, the international trend (in the U.S. and the UK) recently began to have his case although efforts are still very rare (a dozen in a decade) to penalize doctors, mainly on malpractice cases resulting in death. The trend can certainly add to the belief here that NGOs have been preferred to carry malpractice cases to criminal justice, especially as it's possible actions in light of Art 359 Penal Code "Whoever causes one death due to negligence, then in prison ............. And Article 360 ​​of the Criminal Code ........... ............. cause lukaberat then imprisoned two chapters are the chapters "Kojo" to investigators, prosecutors or plaintiffs, although the experts often call trash article. This article could use a variety of events: the driver collided with, the bridge collapsed, driver negligence, etc. (R. Susilo).

Else if the civil case, the plaintiff must prove is (patients) remember "who postulate (that the doctor guilty of) then he is proved". Therefore the plaintiff must prove four elements of malpractice D 4, ie (D) uty, (D) ereliction of duty, (D) amages and (D) irect betweem dereliction of duty causation and damages. Certainly the most difficult for plaintiffs to prove is the last element of D (direct causation), but proving that element along with three other elements of malpractice is no longer necessary when it was discovered that is able to speak for themselves (eg the discovery of scissors or tweezers in the stomach of the patient) so that it can applied the doctrine of Res Loquitur IPSA (the thing speaks for Itself) which automatically prove the malpractice. Although it could also indirectly 100% of physicians could be in law because there is a case of lagging gauze jurisprudence in America because doctors released hot urgent surgery. As for tanggunggugatnya (civil liability,) can be borne by the physician in question or under certain conditions can be transferred to another party based on the teachings of joint responsibility (doctrine of vicarious liability).

The most vivid case examples illustrating kekurangcermatan the patients in the demanding and suing doctors are reporting cases to the police with filing of lawsuit to court just because the baby is born with a vacuum assisted extractie suffering from complications of neck muscle paralysis. Also the case-reporting doctors to the police because of drug-induced Steven Johnson syndrome (which is often impossible to predict in advance). Yes in both cases there is damage, but the problem is, is there any element of dereliction of duty which have directly resulted in the damage?

Institute of Medicine study indicated that about 2.9% to 3.7% of hospitalized patients experienced adverse events, such as:
A. Extension of hospitalization.
2. Defect when leaving the hospital.
3. Permanent disability.
4. Adverse drug events.
5. Wound infection.
6. Died.

About 70% of the above adverse event caused by an error (diagnostic, treatment, preventive and others) that can be prevented so-called preventable adverse event, and only about 27.6% of preventable adverse event that can be categorized as malpractice (Negligence or culpa). So if the count is calculated is actually very small part of the adverse event can be attributed to malpractice, while the rest of the adverse event that does not include violations of law; whether they are errors of commission (doing the action that should not be done) as well as errors of omission ( no action is supposed to do). Presumably what is described above in line with the theory of Perrow (Perrow's Normal Accident The Theory) which states that:
A. In certain systems, accidents can not be avoided altogether.
2. In a complex industry and high tech it is a normal accident.

Be aware that the implementation of health services in hospitals is a difficult, complicated and complex and require the help of technology (methods, tools and medicines). So in terms of patient safety efforts, The National Patient Safety Foundation concluded that:
A. Patient safety (patient safety) is defined as an effort to avoid and prevent the adverse event (adverse outcomes) which is caused by the service and to improve the quality of outcome.
2. Patient safety is not only concentrated on the (person), equipment or departments, but also the interaction of various components and systems.

The things mentioned above should be understood in advance by the patient before deciding to sue, in addition to also understand the logic of law as mentioned below, namely:
A. Therapeutic relationship between patient and the hospital is a contractual relationship and therefore all the principles of contract apply, the main principle of Utmost good faith (good faith).
2. Engagements that arise as a consequence of the therapeutic relationship is the kind of engagement in which the hospital is only burdened with the obligation by law to give a true effort (inspanning or effort), rather than the result (resultaat or result).
3. Adverse events that occurred does not automatically evidence of malpractice.
Malpractice requires proof of four elements of D (Duty duty / obligation, Dereliction of duty, causation Between Damage and Direct Damage and dereliction of duty) or otherwise have no facts that can really speak for themselves (Res Loquitur IPSA).
4. Fault diagnosis can not be said all the doctors of malpractice, in making the diagnosis has fulfilled the requirements and procedures.
      It should be understood by the public that part of the work of physicians of the most difficult part is making the diagnosis, while diagnostic equipment (the most sophisticated) is just the error rate is reduced. It is not strange if the error diagnosis in America remains high (around 17%). One of the most important thing is whether the error occurred because of carelessness diagnosis in the diagnostic procedure or not.
5. Doctors may be prosecuted if their actions meet the definition of criminal offenses and their elements (actus reus and mens rea).
6. Criminal responsibility (criminal responsibility) is always individual and personal and not transferable to another party (whether individual or corporate).
7. Doctors also may be sued if a patient suffers a loss due to broken promises, or because his actions are against the law (onrechtmatige-DAAD).
8. Accountability (civil liability) upon the occurrence of malpractice committed by doctors can be routed based on the doctrine of joint responsibility (doctrine of vicarious liability).


In performing his services, the hospital can not always give results as expected all parties. Sometimes the service would be disastrous; as a lifelong disability, paralysis, blindness, deafness or even death. But hospitals do not have to worry because all it does is correct (according to accepted standards), the adverse events that occurred can only be considered as part of medical risk or as something that can not be avoided, so that hospitals should not be accountable for their losses patient, material and immateriel. Another case when adverse events occur because of errors that can really be attributed to malpractice; whether it is deliberate (intentional), negligence (recklessness) and negligence (Negligence).

Indemnification by the Health Act, is intended to provide protection to any person for anything arising due to both physical and non physical. Physical losses are losses due to the loss or malfunction of all or part of the body organs, which in law is called the loss of material. While the non-physical losses are losses related to one's dignity, which in law is called the loss immateriel. The question now is, who should be accountable for the losses? Doctors, hospitals, foundations or all three?

To be able to answer the above ourselfs first need to understand about:
A. Type of accountability.
2. Therapeutic relationship patterns that occur.
3. Patterns of working relationships between physicians and hospitals.

Regarding the types of accountability (civil law) is known there are many kinds, among others:

a. Contractual liability.
Accountability of this type arise because of broken promises, that no execution of any obligation (performance) or noncompliance with the rights of other things as a result of the contractual relationship.

In relation to the therapeutic relationship, obligation or achievements to be implemented by health care provider is in the form of effort (effort), not the outcome (result). Therefore, doctors accountable for medical efforts that do not meet the standards, or in other words, an effort that could be categorized as medical malpractice civil.

b. Liability in tort.
This kind of accountability is the accountability that is not based upon a contractual obligation, but the tort (onrechtmatige DAAD).

Understanding against the law not only limited to acts contrary to law, legal obligations themselves or other people have a legal obligation but also contrary to good morals and contrary to the precision that should be done in the association of life to another person or another object (Hogeraad , January 31, 1919).

The concept of liability in tort is actually derived from Art.1382 Napoleontic Civil Code, which reads: "Everyone Causes damages through his own behavior must Provide compensation, if at least the victim can PROVE a causal relationship Between the fault and damages". This concept is in line with Art 1365 Civil Code which sound full: "Any act that violates the laws that bring harm to others, requires that the person who caused the loss was his fault to replace those losses."

Given this accountability the hospital or doctor can be sued to pay compensation for the occurrence of errors that include the category of tort (civil wrong against a person or properties) that are both intensiona or Negligence. Examples of actions the hospital or doctor that can lead to accountability, among others, divulging the secrets of medicine, euthanasia or careless in its efforts so that the patient died of medical or disability.

c. Strict liability.
Accountability of this kind are often called liability without fault (whitout fault liability) considering someone to be responsible while not doing anything wrong; whether it is intentional, recklessness or Negligence. Such liability usually applies to products sold or article of commerce, which the manufacturer must pay damages for the havoc caused by their product, unless the manufacturer has given warning of the likelihood of those risks.

In Common Law countries, blood products categorized as a product sold to manufacturers who process the blood must be accountable to each other dairy blood transfusion transmitted viral hepatitis or HIV.

d. Vicarious liability.
This type of liability arising from errors made by his subordinates (subordinate). In conjunction with the hospital medical services (as employer) can be held accountable for mistakes made by health personnel who work in the sub-ordinate position (employee). Another case when the health workers, such as doctors, working as partners (attending physician) to a level position with the hospital.

Doctrine of vicarious liability is in line with the Art 1367, which reads: "A person is not only responsible for damages caused by his own actions, but also for the losses caused by acts of people who become dependent, or due to goods that are under its control".

So whether a hospital can be the subject of joint responsibility depends on the pattern of working relationships between health workers in hospitals, where the pattern of these relationships will also determine the pattern of a therapeutic relationship with patients seeking treatment at the hospital.

Regarding the pattern of the therapeutic relationship between health care providers and health care receiver can be broken down as follows:

a. Relationship "patients - the hospital".
These relationships will occur if the patient is mature and healthy sense, while the hospital has only a doctor who worked as an employee. It is the patient and the hospital, while doctors only serves as an employee (subordinate of the hospital) who shall carry out the obligations of the hospital.

Legal relationship such as this usually applies in government health facilities which doctors are paid regularly and fully, not based on the number of patients have been treated or the quantity and quality of medical action that made the doctor.

b. Relationship "patients - a doctor".
This pattern occurs when the patient is mature and healthy sense (competent), admitted to hospital doctors work not as an employee but rather as partners (attending physician). The party is the patient and physician, while the position of the hospital just as a place that provides facilities (lodging, food and drink, nurse or midwife and medical facilities and nonmedik). The concept is like hiring a doctor to use hospital facilities caring for patients.

Such a pattern shared by many private hospitals doctors earn is based on the calculation of the number of patients as well as the quantity and quality of medical action he did. If within one month of no one who cared so pasienpun in the month that doctors do not earn anything. Employment relationship such as this puts doctors on an equal footing with the degree of the hospital, not the subordinate of the hospital.

c. Relationship "insurer of patients - a doctor".
In principle this pattern as the pattern of item (c), only because the patients were children or unhealthy sense then it is the insurer of the patient (parent or guardian) and physician.

While the working relationship between physicians and hospitals, there are some patterns, such as:
A. Physicians as employees.
2. Physician as attending physician (partner).
3. As an independent contractor physicians.

Each of the patterns above relationship will determine whether the hospital or doctor should be accountable itself (direct liability) for any losses caused by mistakes of doctors and the extent to which accountability is also the doctor can be transferred to the hospitals based on the doctrine of vicarious liability?


At the beginning of its history, the hospital is more than just an institution (the recipient of generous donations) which only provides food and beds for patients who require hospitalization. With diramaikannya hospital by the presence of the physician partners were able to provide a tremendous influence for the improvement of quality of service. Now the situation is completely changed dramatically. The hospital is now not only provide food and lodging, but also a wide range of professionals to support the function; include skilled nursing services and functions of professional, specialist diagnosis and treatment, pre and post-operative care and many other services. Not quite up there just because each hospital also continues to compete to improve and develop into an institution with a total and comprehensive service. But the consequences are not only the quality of medical services, medical support and public services are increasing, but also the possibility of more corporate liability (corporate accountability) and vicarious liability (joint responsibility) due to errors made by the sub-ordinate hospital.

a. Corporate Liability:

Actually rather difficult to distinguish between corporate liability to vicarious liability, for corporate liability in certain circumstances can be interpreted as vicarious liability. The concept of corporate liability itself is actually developed from the understanding that the hospital is an artificial entity that can perform a legal act, through the individuals who joined in the act for and on his behalf so that hospitals can be the subject of direct corporate liability when the employee, non-employee staff, administrative personnel or regular employees failed to implement appropriate hospital policy, for example failure to implement a policy of prevention of nosocomial infections or failed to prevent incompetent doctors for not treating patients.

While not always true, corporate liability may be applied when the hospital does not perform managerial measures that can be justified on certain fields below, namely:
A. Hospital equipment, supplies, medication and food.
2. Hospital environment.
3. Safety procedures.
4. Selection and retention of employees and conferral of staff privileges.
5. Responsibilities for supervision of patient care.

b. Vicarious liability:

In general, hospitals are not accountable for errors physician non-organic (non-employee physician) who only use the hospital facilities to treat patients themselves (staff privileges). They are accountable for the mistakes that have been self-harming patients. Although independently accountable, but the agreement with the hospital can be made for such a share based on the proportion of the compensation agreed to by both parties when the doctor lost in court. Without special agreement the non-employee physician (ie physician partners) are generally accountable independently.

Under the doctrine of vicarious liability, the hospital (although as an artificial entity does not do anything wrong) may also be accountable for the mistakes of organic physician who worked at the institution. Doctrine is in line with Article 1367 Civil Code, which reads: "A person is not only responsible for damages caused by his own actions, but also for the losses caused by acts of people who become dependent, or due to goods that are under its control".

To be able to apply doctrine of vicarious liability as necessary preconditions mentioned below, namely:

A. There should be direct (economic) relationship.
Meaning, between doctors and the hospitals should be established in a relationship that is economics, for example master-servant relationship or employer-employee.

As evidence of a direct (economic) relationship are: a fixed salary, the hospital authority to control, sanction and the authority to appoint and remove doctors.

2. Doctor's actions must be within the scope of duties and responsibilities.
That is, the actions (which harm patients) performed by a physician must be within the scope of duties and responsibilities granted by the employer based hospitals that have established relationships.

If a physician to act outside the scope of duties and responsibilities (ie outside clinical previlige given by the Director upon the recommendation of the Credentials Committee of Medical Committee), the losses from mistakes should be borne alone.

The concept of transfer of accountability to the hospital (in his capacity as master or employer), among others, based on the premise:

A. To provide assurance to patients who are aggrieved that he would be able to find a defendant who has the ability to pay (solvent defendant or deeper pocket).

2. To provide feedback to the management of the hospital to have a sense of greater responsibility in managing and controlling the doctors that would perform better medical services to prevent harm to patients.

The question that arises now is "who should be the target (subject) of the joint responsibility"? Hospital institution or legal entity that would become the owner of the hospital?

Although in fact it makes no difference if that is the subject of vicarious liability is a hospital or a legal entity the owner of the hospital since the imposition of restitution to the hospital itself also will reduce the assets of legal entities who become owners, and vice versa. But viewed from the side of the juridical-formal answer to the question above may be very important in order that both parties understand each other their respective positions, in addition to avoiding the possibility of a lawsuit the wrong address. For it seems to me necessary to consider several things:

A. The basic concept of vicarious liability that the teaching should be direct (economic) relationship between the physician who made the mistake of those who become the subject of joint responsibility.
Who is the subject? The answer was predictable, that depends on who actually gave the work, lay off, pay, control and supervise the performance of doctors are concerned. Hospital or legal entity which owns the hospital?

2. Law on State Law related.
In conjunction with the foundation, all hospitals form a foundation of business activity (performed by the executor and trustee appointed by the organ) then that will be the subject of the foundation tanggungrenteng is concerned. As we know that based on the Law Foundation, the organ committee is solely responsible stewardship of the foundation, both for the benefit or purpose foundations, as well as representing the foundation both inside and outside the court according to the principles of persona standi in judicio. This means that the organ representing the foundation's board in conducting the suit or sued. Perhaps as well as for the hospital which is a charitable association business.
But it is different if the shape of the hospital PT established by the foundation or by the association then tanggungrentengnya not on the foundations or associations, but the hospital (which in this case represented by the directors). Responsibility foundations or associations (as shareholders) is limited to their shares and did not meyentuh other property of a foundation or association which has such PT.


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