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LEGAL PROTECTION FOR DOCTORS IN PROVIDING MEDICAL

SERVICES

Dedet Steavano

, Boy Nurdin

, Zudan Arief Fakrulloh

Universitas Borobudur, Indonesia

dedetsteavano71[email protected]

, Drboynurdin_ppslaw@yahoo.com

, ccls[email protected]

Abstract

The rampant was reported in the mass media mass related to the doctor's profession, that many malpractices

were found by doctors in Indonesia and according to the report of the central health legal aid institution, there

were approximately 150 cases of malpractice even though most did not reach the court. Likewise, public reports

to the Indonesian Doctors Association (IDI) from 1998 to 2004 were 306 cases of complaints of alleged

malpractice. This condition causes anxiety or concerns among doctors, because if it does not help it is declared

wrong according to law and when helped at risk, the patient or family is prosecuted if it is not in accordance

with his expectations. Because of that, in addition to the obligations that must be met, doctors are also equipped

with doctors' rights. Normatively these rights have been listed in the legislation which can be demanded its

existence, especially regulated in Article 50 of the UUPK.

Ke ywords

Legal Protection, Doctor, Medical Services.

INTRODUCTION

Health development is part of national development in increasing awareness, willingness, and

ability to live a healthy life for everyone so that the highest degree of public health is realized. The

health development is an effort of all Indonesian people, so various facilities are needed, one of which

is a doctor. The doctor is a "leader" in health services; however the existence of other health workers

still has a specificity that cannot be replaced.

A doctor in holding his profession must be based on the Medical Practice Act (Medical Practice

Law No. 29 of 2004). It aims to provide a sense of security for the parties because the relationship

formed between patients and doctors or other health workers, or the relationship between patients and

hospitals, the patient's position is always in a weaker position.

The position of the patient in a state requires help makes the patient's position weak under the

position of health workers. This imbalance makes patients vulnerable to being unfair treatment, so

according to the law, the patient's position needs to be escorted so as not to suffer losses or get justice

and protection.

Conversely, as well as health workers, the position of health workers with the existence of the

medical practice law, so that patients cannot arbitrarily commit accusations to doctors or other health

workers in the event of unwanted events.(F.Tenke, 2003)

The study of medical law from the perspective of normative law implies that medical law can

be seen from 3 points of view, namely:

1. Criminal aspects of medical law,

2. Civil aspects of medical legal, and

3. Administration aspects of medical law. These three aspects bind the doctor's behavior in

carrying out his profession, besides that a doctor must complete his behavior in

accordance with the rules so as not to be said to do "malpractice"(J. Guwandi, 2005)

In general, it can be said that medical law is administrative law, because this is a branch of state

administrative law, as referred to in state administrative law, the existence of medical law is shown in

order to create a doctor's order in dealing with other communities (patients, nurses, hospitals, etc.),

Injuruty : Interdiciplinary Journal and Humanity

Volume 2, Number 1, January 2023

e-ISSN: 2963-4113 and p-ISSN: 2963-3397

LEGAL PROTECTION FOR DOCTORS IN PROVIDING MEDICAL SERVICES

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then justice, peace, and harmony will be created for all those involved in these health

services(F.Tenke, 2003)

In connection with this medical profession, it was recently reported in national media mass,

both through electronic media and print media, that many malpractice practices were found by

Indonesian doctors even according to reports in the central health legal aid institution there were

approximately 150 cases of malpractice in Indonesia, although most of it does not reach a green shirt.

Likewise, public reports to the Indonesian Doctors Association (IDI) from 1998 to 2004 were 306

cases of complaints of alleged malpractice (Harian Sinar Harapan, 29 April 2005., 2005).

This kind of news has caused anxiety or at least concern among doctors, because the medical

profession is like eating simalakama fruit, eaten by dead fathers not eaten by dead mothers, not

helping to be declared wrong according to law, being helped risk being sued by the patient or his

family if it is not in accordance with his expectations.

Humanistically, doctors as ordinary people certainly cannot be separated from negligence and

negligence and even intentional. Negligence that occurs while performing their professional duties

can lead to medical malpractice. However, even so in the eyes of the law the guilty are still guilty and

as we know everyone must have the same position before the law regardless of status, lineage, gender,

or position and social status, in accordance with the principle of Equality Be for The Law, while in

society there are also people with bad intentions, who deliberately attract doctors to litigation.

Malpractice in practice is sometimes obscured from what is called medical risk, so it is not uncommon

for a doctor who has worked very professionally, namely in accordance with medical professional

standards, medical service standards, and Standard Operating Procedures (SOP) is still charged with

malpractice (Koeswadji Hermien Hadianti, 1986). A doctor will find out the final result of the

treatment process if the patient dies or is a disability, will receive a response from the patient's family

that a malpractice has occurred.

Apart from negligence, negligence and could be the intentional of a doctor, the doctor must also

get the same treatment as the patient or the patient's family in defending his rights. In the process of

medical servants not the doctor who caused the deterioration of the patient's deteriorating or death, but

this could also be due to other factors such as the patient's family did not heed the recommendations

of the doctor, nurses' mistakes or maybe hospital facilities (Lachs & Pillemer, 1995).

This is very detrimental to the doctor even though the community actually does not understand

very well about what is meant by malpractice. So that every medical or medical service by a doctor

who does not meet the expectations of the patient or family, it is considered a malpractice. In this case

medical services performed by doctors are considered by the patient or patient's family as a

disprofession and even considered a complete doctor's fault.

METHOD RESEARCH

The normative juridical approach is used in this research, according to Soerjono Soekanto. The

normative juridical approach is legal research carried out by examining library materials or secondary

data as the basic material to be studied by conducting a search on regulations and literature related to

the problems studied(Ronny Hanitijo Soemitro, 1990). In this legal study, the author tries to examine

the laws and regulations relating to the problems being studied, namely related to the rejection of

BPJS patients by the hospital.

Normative juridical research uses secondary data sources. Secondary data in the type of

normative juridical research is data sourced from legal materials, consisting of primary legal

materials, secondary legal materials, and tertiary legal materials.(Peter Mahmud Marzuki, 2005).

Legal materials as secondary data used to analyze legal issues in this thesis are as follows.

1. Primary Legal Materials, namely binding legal materials, in the form of statutory

regulations, jurisprudence, treaties, civil agreements of the parties, and others related to

sale and purchase agreements (Nasution, 2008). The primary legal materials used in this

study include:

a. 1945 Constitution of the Republic of Indonesia

b. Law No. 36 of 2009 concerning Health,

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c. Law No. 29 of 2004 concerning Medical Practices

d. Law Number 29 of 2004 concerning Medical Practices

2. Secondary Legal Materials, namely materials that provide an explanation of primary

legal materials, such as the draft law, research results, or the opinion of legal experts

(Amarudin dan Zainal Asikin, 2010).

Tertiary legal materials, namely legal materials that provide instructions and explanations of

primary legal materials and secondary legal materials, for example dictionaries (law, English, and

Indonesian), encyclopedias and others (Soerjono Soekanto dan Sri Mamudji, 1985).

RESULTS AND DISCUSSION

1. The Need for Legal Protection for Doctors

The legal relationship between doctors and patients is actually a health service

relationship (medical service) or in other terms a medical action between a Health Provider

(health care provider) and a Health Receiver (health care recipient).

According to Leenen as quoted by Danny Wiradharma (Danny Wiradharma, 2002),

doctor's obligations in carrying out health services. Obligations arising from the nature of

medical care where doctors must act in accordance with the standard of the medical profession

or carry out medical practices in a lege.

Doctors' obligations in Article 51 of Law Number 29 of 2004 concerning Medical

Practices, namely:

a. Providing medical services in accordance with the professional and standard

operational procedures and medical needs of the patient.

b. Refer to patients to other doctors who have better expertise or ability, if unable to

do an examination or treatment.

c. Keep everything he knows even after the patient died.

d. Conduct emergency help on the basis of religion unless he believes there is

someone else who is on duty and able to do it.

e. Add knowledge and follow the development of medical science.

A doctor who is suspected of doing malpractice medical or acts of violation of the law in

the medical profession, then he can be prosecuted administratively, civil law, or criminal law,

regardless of whether or not a doctor has been accused of doing malpractice medical medical

Through the mass media, the career has been destroyed so far.

Medical malpractice is indeed possible, whether due to intent or due to negligence,

however as a human being a doctor cannot be separated from the possibility of making

mistakes and mistakes because it is the nature of human nature (Davis, 2002). In the facts that

occurred in the field from the results of the interview with the Chairperson of the Makassar

Branch of the Indonesian Doctors Association, there were several reasons so that a doctor

should receive legal protection for these causes or things. Including:

a. Doctors who are sometimes considered unprofessional, even though a doctor who

has carried out medical services that are in accordance with professional standards,

medical service standards and operating procedures. If a doctor has carried out

medical services or medical practice, it has been in accordance with professional

standards and operating procedures standards, the doctor cannot be prosecuted,

both administrative law, civil law and criminal law.

b. Patients or families of patients who do not accept the failure of treatment efforts,

even though a doctor who has then provided an explanation to the patient and or

his family about the diagnosis and procedures for medical actions, the purpose of

medical actions taken, other alternative actions and the risks and complications

that might occur. After the patient approves the medical action based on the clear

and bright information, and the medical action has been in accordance with the

standard of medical service, the doctor cannot be blamed if there is a failure in the

effort.

c. The doctor who was blamed by the patient, due to the actions carried out by the

patient himself who did not explain to the truth about the history of the disease he

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had suffered and the medicines he had eaten during illness or did not obey the

instructions and instructions of the doctor or reject the agreed treatment method,

This is considered as a patient to be guilty of honesty and obey the advice and

instruction of this doctor is considered as an obligation of the patient to the doctor

and against himself.

d. The doctor who is considered negligent, even though a doctor is not considered

negligent if he chooses one of the many ways of treatment that is recognized

where the medical action choices from the doctor have been based on professional

standards such as in terms of diagnosis that use scientific methods and facilities

which is available to further be sure and confident of the diagnosis it prefers,

which then after that it turns out the choice is wrong.

e. Returning forced, a patient who decided to go home for his own will even though

the doctor had not allowed it, and if a complete explanation had been carried out

and it turned out that the patient and or family of the patient agreed if there was a

risk that had been previously suspected, the doctor could not be accounted for on

his medical action and this Such is also freeing doctors and hospitals from

lawsuits.

In addition to the doctor's obligations that must be met in carrying out health

services, the doctor is also equipped with a series of doctors' rights. Normatively these

rights have been listed in the legislation which can be demanded its existence, especially

regulated in Article 50 of the UUPK which states as follows:(Undang-Undang No. 29

Tahun 2004 Tentang Praktek Kedokteran, Pasal 50., n.d.)

a. Obtain legal protection as long as carrying out the duties according to the

profession and standard of operational procedures.

b. Providing medical services according to professional standards and operational

standards.

c. Get complete and honest information from the patient or family, and

d. Receive service rewards.

From the rights of the doctor as stipulated in Article 50 above, that doctors are

entitled to get legal protection from medical actions that have been done, as long as what

the doctor has done in accordance with professional standards and operating procedures

standards. If the doctor takes medical actions in accordance with professional standards

and operational procedures standards cannot be prosecuted in court.

2. Legal Protection for Documents in carrying out their duties.

A doctor in carrying out his duties must be based on the applicable medical code of

ethics. The main thing in protecting doctors if there is a doctor suspected of doing malpractice

is in the mediation process, because most of the resources of disputes are the absence of

communication. This is contained in Law No.36 of 2009 concerning Health, continued

explained by him that the mediation stage is faster in solving problems, more effective losses

will be reduced in the settlement of disputes what else we know the principles that are always

there, namely "the principle of presumption does not Guilty "until the person concerned was

truly proven guilty from the court's decision. The settlement of cases of legal services legally

(litigation) often has a negative impact on health workers, because the future of health workers

is already bad, which is not necessarily guilty. He might lose the trust of the patient and the

shame of both himself and his family is a prolonged moral burden.

A doctor can carry out the code of ethics well so it must start from becoming a medical

student to become a doctor and carry out activities as a doctor's profession (Cox, 2012), while

what is meant is as follows:

a. Conduct under graduate education at the Faculty of Medicine (S1) Introduction,

appointment and understanding of the medical code of ethics needs to be done as

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early as possible, namely through under graduate education at the Faculty of

Medicine

b. Carry out structural, scientific training courses and Arara that are accredited by the

Indonesian Doctors Professional Organization (IDI) so that the medical code of

ethics can be remembered by doctors, it is necessary to hold structured

training/courses regarding the medical code of ethics.

c. Doctors must be happy to be careful in announcing or applying new techniques or

treatment that have not been tested for truth and to things that can cause

community unrest.

e. Requires doctors to be open to talking properly, factual and manners

professionally when communicating with members with patients and with the

wider community.

f. Requires doctors to be able to follow the development of science and

medical/health technology as referred to in the scope of Article (1) is carried out

by; 1) Reading various literature in books, scientific magazines for electronic

literature, brochures and so on, 2) participating in scientific activities such as;

Seminars, workshops, training and so forth, so that knowledge and skills remain

recognized and trusted, 3) actively conduct medical or health research.

g. Requires every doctor to always maintain his health, so that it can work well.

h. Providing proper legal protection, in the case of a lawsuit or lawsuit from patients

or families of patients who are not satisfied with the performance of the doctor.

In the new health law No. 36 of 2009, the settlement of cases in health services must go

through mediation and this is a higher new legal basis (Undang-Undang No.36 Tahun 2009

Tentang Kesehatan., n.d.).

The hospital that worked on a doctor in the event of a problem or acts of case with the

patient, was carried out by the mediation pathway first with the patient. Mediation is an effort

to resolve disputes against the parties by sitting together in order to produce a joint agreement

by presenting a mediator who is neutral who is able to bridge dialogue between the parties to

create an orderly dialogue peroses, which with the presence of a mediator will direct the parties

to be more open and honest in conveying the problem (Sri Siswati, 2013).

The mediation process begins in the following ways:

a. The mediator introduces themselves and the parties.

b. The mediator ensures the will of the parties to solve problems with the mediation

path.

c. Mediator explains the notion of mediating and the role of mediators.

d. The mediator explains the mediation procedure.

e. Mediator explains confidential parameters.

f. The mediator explains the rules of behavior in the negotiating process.

g. Indiciting the general topics of the problems that will be discussed and determine

the sequence of the sub topics that will be discussed in the negotiating process and

compiling a prejudice agenda.

h. The mediator can reveal the hidden interests that can be done in two ways, namely

directly by announcing the questions directly to the parties, or the palat is not

directly by listening or re-formulating the statements made by the parties.

i. The mediator is trying to encourage the parties not to survive in a positionable

mind pattern, but must be open and look for alternative solutions to solving

problems together.

j. Analyzing the choice of dispute resolution, where the mediator helps the parties

determine the profit and loss if they accept or reject a problem solving. The

mediator also reminded the parties to be realistic and not submit demands or

unreasonable offers.

k. The final bargaining process, where at this stage the parties have seen the meeting

point of their interests and are willing to give concessions to each other. The

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mediator also helps the parties to develop offers that can be used to test whether or

not it can be achieved.

l. Reach a formal agreement, the parties prepare an agreement and procedure or

implementation of the agreement.

Patients who complain about cases of medical negligence will receive an explanation of

the various ways of handling their cases and are invited to choose which mechanism is most

appropriate for their case. If he chooses the mediation route, then a mediator will immediately

take steps to prepare for mediation. Mediation officers will bridge the patient side and the

doctor through mediation, which is expected to get two benefits at once, namely: 1) disputes

between patients and doctors or hospitals can be resolved, and 2) doctors and hospitals will get

a derrence effect if they do. disciplinary violations.

The process of resolving legal disputes which is carried out through court media to be

able to decide who is right and wrong, where each disputing party gets the opportunity to file a

lawsuit and rebuttal. Below are some of the divisions that can be taken related to the litigation

process.

a. Through the civil court

The legal basis through this civil court can be described as follows: (Sri Siswati,

2013).

1) Article 32 letter Q of Law Number 44 Year 2009 concerning hospitals,

states that every patient has the right to sue and/or sue the hospital if the

hospital is suspected of providing services that are not in accordance with

standards, both civil and criminal.

2) Article 66 of Law Number 29 of 2004 concerning Medical Practice.

a) Anyone who knows or whose interests have been harmed by the

actions of a doctor or dentist in carrying out medical practice may

submit a written complaint to the chairman of the Indonesian Medical

Discipline Honorary Council.

b) The complaint must at least contain the identity of the complainant,

name and address of the doctor's or dentist's practice and the time the

action was taken and the reasons for the complaint.

c) The complaints as referred to in paragraphs (11) and (2) do not

eliminate the right of everyone to report suspected criminal acts to the

competent authorities and/or to file a lawsuit for civil damages to the

court.

b. Through the State Administrative Court

The process through the State Administrative Court (PTUN) in principle is

the same as the Path of Civil Court, but there is an addition to the State

Administrative Court known as the "Dismisal Process". The dispute between the

two parties will be assessed by the judge in this process whether this dispute is

worthy of being forwarded to PTUN or not. In PTUN Judges more active to

explore cases based on Law Number 51 of 2009 concerning the Second

Amendment to Law Number 5 of 1986 concerning State Administrative Council.

TUN agencies or officials, both in the center and in the regions, as a result of the

issuance of TUN decisions including staffing disputes based on applicable laws

and regulations (Sri Siswati, 2013).

From the results of the TUN dispute process issued a State Administration

Decree (KTUN), which is a written determination issued by the TUN Agency or

Officer that contains TUN legal actions based on applicable laws and regulations,

which are concrete, individual, and final, which cause legal consequences For

someone or civil legal entity.

c. Through the criminal trust pathway

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The legal provisions of criminal trial pathways are contained in various

laws, both the Criminal Code, as well as in special laws in the health sector such as

Law Number 36 of 2009 concerning Health, Law Number 29 of 2004 concerning

Medical Practices, Laws -Law Number 44 of 2009 concerning Hospitals and

various other health laws that are specifically applicable.

If there is a report or complaint about the existence of a criminal offense

carried out by a doctor or health worker, the doctor or health worker can pass the

stages in resolving criminal cases. Previously carried out the investigation process,

which began with clarification of alleged criminal acts, summons for parties to

hear the statement and acts of the minutes of clarification. Furthermore, with this

information, witnesses can be called whether the alleged action is true. If the

results of the investigation can be concluded that there are allegations of criminal

acts, then it continues in the investigation process (in the police), prosecution (at

the prosecutor's office), and trial (in court).

CONCLUSION.

A doctor needs to get legal protection, from several factors who are used as patients or from

the family to sue, among others: doctors who are considered not professional, patients or families who

cannot accept failure from a treatment effort, a doctor who is blamed by patients who were apparently

caused by The patient himself, a doctor who is considered negligent, and a request forcibly returning

from the patient or family. Until now the doctor has received a pretty good legal protection, even

though the doctors on duty also often get a complaint from the patient or patient's family, even though

no one has reached a green shirt. This is because the problem can be resolved through the mediation

channel and this is one of the efforts in protecting doctors when there is an objection from the patient

or patient's family.

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Dedet Steavanno, Boy Nurdin, Zudan Arief Fakrulloh (2023)

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