By: Dr.dr.Pribakti B, SpOG(K) *)
Public lawsuits against the medical profession with accusations of malpractice seem to be constantly sticking out in the public news. Lately, there has been a lot on social media about allegations of malpractice committed by a doctor at the Ulin Banjarmasin Hospital (http://kalselpos.com/2020/11/12).
Cases that make doctors as perpetrators or suspects seem to be fertile fields for the media to be explored and exposed just like the news of celebrities. The demands of the victim’s family are not only directed at hospital owners and hospital directors. However, it is more like the handling done by the doctor to the patient. Starting from accusations of misdiagnosis, mishandling, to administrative matters at the hospital.
It must be admitted that in our society, including lawyers / legal experts, they still have confused understanding of both. There is a medical risk but it is considered malpractice. And vice versa. Then, what is the difference between malpractice and medical risk? Literally, malpractice consists of two words, namely “mal” which means “wrong” and “practice” which means “implementation” or “action” so that malpractice means “wrong implementation or action”.
If you look at this literal meaning, the word “malpractice” can be applied to anyone who performs an action or execution based on his expertise. In other words, the term malpractice is more attached to professionals so that some linguists use the term professional misconduct more.
Malpractice is “the wrong professional attitude of a person, such as doctors, engineers, lawyers, accountants, dentists, veterinarians. Malpractice can be the result of indifference, negligence, or lack of skills or inadvertence in carrying out professional obligations, deliberate wrongdoing or unethical practices. According to the understanding of the layman, malpractice is more attached to the wrong actions committed by doctors so that it is known as “medical malpractice”.
Although the word malpractice is legally linked only to medical negligence, the World Medical Association makes malpractice boundaries that are also in line with the Indonesian Doctors Association (IDI) limitation, namely: “the failure of doctors to apply standard treatment services to patients, or lack of expertise, or neglect patient care, which is a direct cause of injury to the patient”. Furthermore, regarding medical malpractice, this term has since developed not only to doctors, but also to other health workers.
In the explanation above about malpractice, there are other terms that people do not understand what is the term that occurs in their services. There is what is known as the risk of medical action which has a very broad meaning. Medical risk is built from the word “risk” and “medical”. The risk itself comes from the word “risk” which in English means there is the possibility of something bad happening in the future; situations that could be dangerous or have an unfavorable outcome.
Meanwhile, the definition of medical action according to Regulation of the Minister of Health 290 / Menkes / Per / III / 2008, which states that medical action is a medical action, in the form of preventive, diagnostic, therapeutic or rehabilitative action performed by a doctor or dentist on a patient. So, the risk of medical action can occur in any series of treatment processes, such as in diagnosis, during surgery, determination of drugs and dosages, post-surgery and so on.
Medical risks can also occur in all places where treatment is carried out, for example in hospitals, clinics, doctor’s practices, pharmacies, at patient homes, in public places (for example, in immunization activities and social services) and others.
In some literature related to medical risk, it is known that there is a difference between relative risk and absolute risk. The relative risk of medical action means that the risk is individual and not predicted beforehand, while the absolute risk is general. This means that all people who get medical action will get the same risk and that was predicted. The relative risk is exemplified by people who, without prior knowledge, are unable to tolerate injections of penicillin antibiotics, causing anaphylactic reactions. Absolute risk, for example, hair loss after frequent cancer chemotherapy.
From a medical perspective, doctors cannot be blamed for medical errors, medical accidents, medical negligence. These things happen beyond the ability and certain predictions of the doctor. The doctor has done everything correctly and adequately according to the Service Operational Standard (SOP) which is also adjusted to the conditions and situation of the service facility. The principles of medical care are emphasized on effort, not on results.
Therefore, in the doctor’s oath it is pronounced “I will make every effort so that I will not be influenced by religious, national, ethnic, gender, political, social position and disease considerations in fulfilling my obligations to patients”. Effort means an effort made seriously and prioritizing the interests of the patient.
Another aspect that becomes a consideration in determining whether or not there is a criminal act in medical malpractice is that there must be an element of intention to commit a crime. Meanwhile, in carrying out their profession, every doctor is bound by a doctor’s oath which obliges everyone who pronounces it to carry out this noble profession and to be accountable to God Almighty. Therefore, in its implementation, it is very difficult to prove that there is a criminal element in the consequences of medical action.
Then, can the consequences of medical services be criminalized? The answer is yes. Due to legal considerations there is something called “the thing that speaks” (the thing speaks for itself). Although this doctrine is mostly used in civil cases, in certain cases it is sometimes used in criminal cases. For example, the case of making a fake death certificate which is directly proven by the absence of a body described in the letter, an amputation error and so on.
Therefore, to eliminate unwanted conditions from medical services, professional organizations based on the mandate of Law Number 29 of 2004 concerning Medical Practice invites all members to continue to maintain and improve their competence.
This aims to continue to provide the best quality service for the community. Being careful in providing services while adhering to the service standards set and making the best possible effort based on existing capabilities must be put forward by every doctor who provides services. Patients as medical service users have the right to get quality services without having to demand results. However, patients also have an obligation to cooperate with doctors and other health professionals to produce appropriate services.
In developing countries, with understanding of health law, any disputes related to medical services are resolved through non-litigation channels or through mediation. Through mediation, a win-win solution can be obtained that can provide benefits for patients or families of patients and doctors. This does not mean closing the responsibility for doctors to be responsible for the consequences of all their actions if they are proven to have committed violations. Hopefully this article is useful for all of us.
*) Chairman of the Ethics and Law Committee of Ulin Banjarmasin Hospital
