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Eduvest � Journal
of Universal Studies Volume 2, Number 11, November 2022 p- ISSN
2775-3735- e-ISSN 2775-3727 |
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CIVIL LIABILITY OF A DOCTOR IN
MALPRACTICE CASES |
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Rizka Ananda Putri Aji, Rocky Marbun Universitas
Pancasila, Indonesia |
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ABSTRACT |
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The right to
health is part of human rights guaranteed in the constitution. The state is
obliged to strive for the fulfillment of these rights through the provision
of health services. Concerning health services, the existence of doctors
plays an important role. Juridically the medical profession has been
regulated in �Law Number 29 of 2004 concerning the Medical Profession�. Based
on the law, the relationship between doctor and patient is based on trust. In
carrying out their duties, of course, doctors must hold fast to prioritizing
the health of patients. However, there are malpractice actions that occur,
causing harm to the patient. Juridically this is certainly a problem
regarding the responsibility of doctors to patients. Therefore, in this
paper, the author discusses how doctors are responsible for malpractice
actions from the perspective of civil law. The method used in this paper is
normative juridical with a statutory and conceptual approach. |
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KEYWORDS |
Doctor, Malpractice, Liabillity |
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This
work is licensed under a Creative Commons Attribution-ShareAlike
4.0 International |
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INTRODUCTION
Healthy life is
the dream of every human being without exception. Health is one of the basic
needs and is the right of everyone. From a legal perspective, the right to
health is part of human rights. The recognition of these rights is contained in
the "Article 25 of the Universal Declaration of Human Rights" which
reads:
�Everyone
has the right to a standard of living adequate for the health and well-being
of himself and his family including food, clothing, shelter and health care and
social service needs, and the right to be protected in circumstances of
unemployment, illness, disability, widowhood, old age or lack of livelihood. in
a state beyond his control (Assembly, 1948).�
The existence of
provisions in the declaration of human rights in 1948 has shown that there is
international recognition of the right of every human being to health and life.
The embodiment of the declaration is then regulated in the "International
Covenant on Economic, Social, and Cultural Rights in Article 12 paragraph
(1)". Of course, this raises obligations for every country bound by the
Covenant, including Indonesia. The government has ratified the Covenant through
"Law No. 11 of 2005 concerning Amendment to the International Covenant on
Economic, Social, and Cultural Rights�.
However, when
examined in national law, in essence "the 1945 Constitution of the
Republic of Indonesia" ("1945 Constitution of the Republic of
Indonesia") in "Article 28H paragraph (1)". The constitution as
staatsfundamentalnorm certainly provides a logical consequence of the emergence
of the state's responsibility to guarantee the fulfillment of these rights.
When examined further, in the concept of a welfare state and democracy, the
government has an obligation to guarantee the fulfillment of the rights of
every citizen, including regarding health (Indriati et al., 2022).
Before discussing
further, it is necessary to examine the definition of health itself. Referring
to "Article 1 point 1 of Law Number 36 of 2009 concerning Health" the
definition of health is:
�Health is
a healthy state, both physically, mentally, spiritually and socially which
enables everyone to live productively socially and economically (No, 36 C.E.).�
Based on this
definition, it is known that health is a state of prime not only physically,
but also mentally, spiritually and socially so that everyone can have the
ability to live productively. Paul Hunt argued that the right to health is a
fundamental right which obliges the state to take a series of actions to
realize the fulfillment of this right. A concrete step for the state to fulfill
this right is to provide health services for everyone without exception (Mardiansyah, 2018).
Talking about
health services certainly cannot be separated from doctors as one of the
professions that is closely related to health services. Bahder John stated that
doctors in carrying out their profession are based on the principle of being
serious, not hurting, injuring, harming, and respecting the rights of every
person as a patient. The position of doctors in providing health services is
certainly the main guard to ensure the availability of proper and qualified
health services for everyone's health.
As a profession
that provides health services to the community as a patient, it certainly
creates a legal relationship between the two. Theoretically, the relationship
between doctor and patient is known as relationship therapeutic. The
therapeutic relationship is the relationship between the patient and the doctor
concerned with health services provided by doctors and accepted by the patient (Mannas, 2018). The initial concept of the doctor-patient
relationship started from the paternalistic pattern of parent-child
relationships. This gives the doctor a higher position than the patient (Supriyatin, 2018).
This imbalance in
position between doctor and patient only applies in a socio-psychological
perspective. However, from a legal perspective, the relationship between the
two is equal as a legal subject. The basis for the emergence of this
relationship is the trust of the patient to help treat the medical problems he
is suffering from. When the patient has given his trust and there is approval
from the doctor to take a series of actions in accordance with his competence,
a legal relationship immediately appears (Nuraeni et al., 2020).
�Article 39 of Law
Number 29 of 2004 concerning the Medical Profession� has been stated regarding
the relationship between patient and doctor as follows:
�Medical
practice is organized based on an agreement between a doctor or dentist and a
patient in an effort to maintain health, prevent disease, improve health, treat
disease and restore health�
Although a doctor
in carrying out his duties and obligations must prioritize the health of the
patient, in practice there are several cases of malpractice that have occurred
in Indonesia. In October 2015 a toddler died due to an injection by a doctor (Fikri, 10 C.E.). One of the malpractice cases that has
been decided by the "Indonesian Medical Disciplinary Council"
("MDKI") and the Central Jakarta District Court is the case of Siti
Chomsatun for the malpractice act of "dr. Tantiyo Setiyowati, M.H., Kes�
and �dr. Fredy Melke Komalig, M.K.M.� and Kramat Hospital 128. The Central
Jakarta District Court through "decision number
287/Pdt.G/2017/PN.Jkt.Pst" has decided the defendant to pay compensation
in the amount of Rp.17,620,933.00 ("seventeen million six hundred and two
twenty thousand nine hundred and thirty three�) (Subarsyah, n.d.).
This paper will
discuss about civil liability for malpractice acts committed by doctors. The
discussion regarding this responsibility is of course preceded by an analysis
of the legal relationship between doctors and patients based on civil law both
theoretically and the "Civil Code" (KUHPerdata). Then the writer analyze
accountability in the event of malpractice by doctors.
The method used in
this research is normative juridical by analyzing secondary data. Normative
juridical research is known as doctrinal legal research because it is based on
legal principles, principles and theories. The approach in this paper is the
legislation by examining the laws and regulations relating to the civil
liability of doctors for malpractice acts and the conceptual approach by
examining the concept of civil liability (Marzuki, 2017).
RESEARCH
METHOD
In this study, the writing method will be described so
that it can be known what technical writing is used in the research that the
writer did. The method is a series of activities regarding procedures for
collecting, processing, analyzing and constructing data. This research writing
method is a normative method. Normative legal writing, also called library
research (Library Research), is research conducted by means of Civil Liability
of a Doctor in Medical Malpractice Cases Lex Jurnalica
Volume 12 Number 2, August 2015 144 tracing or analyzing and analyzing library
materials or ready-to-use document materials. In legal research, this form is
known as Legal Research, often also called doctrinal legal research, and
library research or document studies, such as laws, books related to the
problem.
RESULT AND
DISCUSSION
Referring to Book III of the Civil Code
in civil law, the terms engagement and agreement are known, both of which
provide a legal relationship between parties. Engagement in Dutch refers to the
term verbintenis which is then interpreted variously by legal experts
in Indonesia. Subekti and Sudikno define verbintennis as an engagement in which
there is an attachment to achievement between 2 (two) parties. Sri Soedewi and
Kusumadi define verbintenis as a contract in which the relationship between the
parties is based on accounts payable. On the other hand, Wirjono Projodikoro
defines it as an agreement, although there is another term which is then
interpreted as an agreement, namely overeenkomst. R. Setiawan interprets the
engagement as a legal relationship in the field of assets that gives rights to
one party and obligations to the other party (Joko et al., 2020).
Based on
"Article 1233 of the Civil Code" it is stated that an engagement can
arise due to an agreement or law. In this case, it is necessary to describe in
advance the engagement arising from the agreement and the law as follows:
1.
Engagement
by agreement. The provisions of "Article 1313 of the Civil Code"
state that an agreement is an act between two or more people who bind
themselves to each other. According to Subekti, because the agreement is an act
that binds itself, then immediately an engagement arises for the relationship
of the parties.
2.
Engagement
due to law. Referring to "Article 1352 of the Civil Code" agreements
due to law are divided into agreements that occur only because of laws and
arise from laws due to human actions.
3.
3.
Engagement due to good deeds according to or against the law. This is in
accordance with the provisions of "Article 1353 of the Civil Code�.
Etymologically, if the agreement is connected with the
term in Dutch, it refers to overeenkomst which means to agree or agree. In the
context of an agreement, of course, the word agreement is the basis for the
emergence of promises between one person and another. Referring to the
provisions of "Article 1313 of the Civil Code" an agreement is
defined as an act of binding oneself between one person or more with another
person. The elements of the agreement as stipulated in the article namely: (Zakiyah, 2022)
1.
Deeds. This element means that there is an
act committed between 2 (two) or more people and the said act has legal
consequences.
2.
Bind itself between one or more people
with other people. This means that between the two parties there is conformity
of the will to bind themselves to the actions committed. The implication of
this self-binding is the emergence of rights and obligations that must be
carried out as achievements by both parties.
If it is extended again, there are at least 5 (five)
elements in an agreement namely: (Santoso, 2021)
1.
Legal rules. The point of this is that in
an agreement, especially in Indonesia, due to the existence of legal pluralism,
it creates a variety of legal norms. First, the rule of contract law based on
positive law which must be done in writing. Both based on customary law and
customary agreements can be made orally based on applicable customary law.
2.
persons. In the sense that people are of
course divided into 2 (two) namely humans as natuurlijke persons and legal
entities as rechtspersoon. The person in an agreement must be a legal subject.
If a human being, he must be competent (bekwaamheid) and in a legal entity then
the representative must be authorized (bevoegheid).
3.
Agreed. The word agreement can be
interpreted as a conformity of will between one party and another.
4.
Achievements. The emergence of
achievements is a consequence of the agreement between the two parties so as to
give birth to rights and obligations for each party. Achievements can be in the
form of giving something, doing something, or not doing something.
5.
Legal consequences. An agreement made by
the parties certainly has legal consequences and if the achievement is not
fulfilled then one party can sue the party that does not fulfill its
achievements.
Arrangements
regarding agreements have been regulated as in "Book III of the Civil
Code". In the Civil Code, there are several agreements that have been
regulated, namely buying and selling, leasing, exchanging goods, safekeeping,
lending, borrowing, granting of power of attorney, debt guarantees, and peace.
Agreements that have been regulated in the Civil Code are known as named
agreements (nominaat). On the other hand, as a result of legal developments and
because "Book III of the Civil Code" adheres to an open legal system
in line with the principle of freedom of contract in "Article 1338 of the
Civil Code", it is possible for the existence of other agreements outside
the provisions of the Civil Code. Various agreements that exist outside of the
"Perdata Code" namely lease, lease purchase, franchise, credit,
agency, joint venture, and various other agreements which are categorized as
anonymous agreements (innominaat) (Sonatra
& Pratama, 2020)
Whereas as
previously stated that the therapeutic relationship is a term of lecturer and
patient attachment. The elements of this relationship are: (Roihanah,
2019)
1.
Agreement between doctor and patient. As
previously explained, the basis for an agreement between patient and doctor is
based on trust. When a patient has chosen a doctor at a hospital or private
practice, in this act he has shown his trust and agrees to entrust his health
services.
2.
Informed consent. This means that after an
explanation from the doctor regarding a series of medical actions to be carried
out and the patient agrees to these actions.
Thus, when looking at the therapeutic relationship,
it can be seen that there is a contractual relationship between the doctor and
the patient. In practice, it can be exemplified, for example, there are
patients who want to do plastic surgery and between the patient and the doctor
have mutually agreed on the plastic surgery procedure. This agreement has
become the basis of a contractual relationship as long as it is based on
"Article 1320 of the Civil Code". Regarding the form of the contract
in the "Code of Civil Code" does not absolutely determine the form of
the agreement. This is in line with the principle of freedom of contract that
applies in contract law.
If as a result of the operation there is a loss
suffered by the patient, for example the discrepancy between the results of the
operation and what was promised by the doctor, then in this case a default has
occurred. With regard to defaults, according to Subekti, there are 4 (four)
categories, namely not fulfilling achievements at all, fulfilling achievements
but being late, fulfilling achievements but are wrong, or doing something that
was agreed in the agreement which was prohibited. If there is a discrepancy
between agreed performance and practice, then in this case a default has
occurred.
On the other hand, the legal relationship between
doctors and patients can occur without being preceded by an agreement. For
example, if a patient has an accident and suffers from an emergency, in this
case the doctor is obliged to take a series of actions because of his
profession. This obligation arises on the basis of voluntary and statutory
orders. In the "Civil Code" this act is known as zaakwarneming. If
the doctor does not take a series of actions to save the patient then an
unlawful act (PMH) has occurred. Another example, for example, in carrying out
an operation is that medical equipment is left in the patient's body due to
negligence, in this case there is negligence.
If there is negligence or denial of obligations
carried out by a doctor, it can be said that PMH has occurred. The definition
of PMH can be classified into two, namely in a simple and broad sense. In
simple terms, PMH is an act that violates the rights of other people and their
legal obligations or, more simply, an act that violates the provisions of laws
and regulations. In a broader sense PMH is not only an act that violates laws
and regulations, but also an active and/or passive act that violates the rights
of others on the basis of prudence in the social life of society.
That in order to analyze whether an act can be
called PMH, it is necessary to first examine the elements that form the
construction of the unlawful act itself. The elements are namely: (Yuniarlin,
2012)
1.
There is an act. The meaning of action is
not only related to active actions but also passive actions.
2.
The act is against the law. Regarding
against the law, it is not only interpreted as an act contrary to positive
legal norms, but also if the act violates other people's rights, decency,
and/or the principle of prudence.
3.
There is an error. That an act that
violates the law is due to an error. The error was either intentional or
negligent and there is no reason to deny the error.
4.
There is a loss. That as a result of the
act of resistance, namely the loss suffered by another person.
5. The
existence of causality. This fifth element emphasizes that there must be a
correlation between actions and losses to postulate whether someone has
committed an unlawful act.
With regard to liability if a malpractice action
occurs based on a prior agreement so that there is a contractual relationship,
the patient who suffers a loss can file a default lawsuit. Patients can claim
compensation for losses suffered as a result of malpractice actions committed
by the doctor. Then refer to "Article 1371 of the Civil Code" if due
to carelessness, you can also be asked for compensation for the default (Sinaga, 2018).
In the concept of responsibility for unlawful acts,
of course the first thing that must be fulfilled is the five elements as
explained earlier. The "Perdata Code" has regulated the model of
accountability for PMH, namely liability on the basis of mistakes namely in
"Article 1365 of the Civil Code", responsibility on the basis of
negligence as "Article 1366 of the Civil Code", and absolute
responsibility refers to "Article 1367 of the Civil Code� (Asvatham & Purwani, 2020).
CONCLUSION
Based on the author's explanation, it can be concluded that the
relationship between doctor and patient is a therapeutic relationship that can
arise either because of approval or because of a doctor's obligation to his
profession. A contractual relationship can arise if the action taken by a
doctor is based on an agreement with the patient. Meanwhile, engagements that
arise when doctors perform their obligations to treat emergency patients are
due to their legal obligations based on statutory orders. The two models of
relationship will certainly have different consequences when there is
malpractice. In a relationship that arises because of an agreement between a
doctor and a patient, if a loss occurs, a lawsuit can be filed in default. On
the other hand, if a doctor does not carry out his legal obligations and causes
harm to the patient, an unlawful act has occurred. Therefore, in the case of
malpractice, the doctor is responsible for the losses suffered by the patient.
However, it is necessary to examine the basis of the relationship that becomes
the engagement for doctors and patients.
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