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 the definition and limitations of errors in medical malpractice, which causes legal uncertainty and fear among medical professionals in taking action. It also outlines efforts to specifically regulate and 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 Demands
Medical malpractice or 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 crisis." The public is increasingly aware that medical malpractice can be held legally accountable. Medical malpractice then turned into a legal problem.[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 this term could not initially be found in Indonesian legislation (positive law). To find the meaning of "medical malpractice" In that regard, an approach based on general understanding, supported by expert opinions on the definition of the term, was initially taken. The officials dealing with medical malpractice cases have essentially been trying to dissect similar terms in existing regulations. However, this has led to dissatisfaction, especially from the medical profession.
PUnderstanding Medical Malpractice
The understanding of malpractice was initially taken from the English term 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. In the event that the error is committed by a medical professional during a medical procedure, it is referred to as 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 has not been clearly regulated. Both the public and the medical profession still believe that the legal regulations related to medical malpractice are not yet ideal. The confusions regarding the boundaries of medical malpractice are then felt by the public to create uncertainty.
Limitations 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 referred to as criminal malpractice.[2]
Based on these opinions, it is clear that confusion has begun 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 focused on the inner attitude of "negligence" and/or "intentionality" at the moment the medical action is taken. 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 ambiguity in understanding inevitably creates uncertainty in the application of the law. The lack of clear boundaries also makes the general public tend to judge a medical action as malpractice outright.[4] As a result, the public easily corners the medical profession because the connotation of the term malpractice is already attached to medical actions, and its nature has been very bad. On the other hand, this certainly makes many medical/health workers and/or the medical profession then become afraid to commit a medical act because of the fear of facing the law. Looking from the perspective of victims of malpractice, it is also very likely that justice cannot be achieved, because it is possible that an act cannot be subject to criminal law. For example, in the case that recently occurred, namely the phenomenon of swapped babies.[5] If viewed from any legal rule, of course, no rules will be found regarding such events. However, this is actually a natural thing to happen because the law basically cannot possibly write down precisely and specifically about what losses might one day be caused by medical practice.
Therefore, the author intends to differentiate the inner attitude of "error" as quoted from the views of experts 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 intentionality (criminal malpractice). Thus, if it is agreed that there is a distinction in these two medical actions, then a further approach can be made to the existing rules.
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