By:

NAME : MEILIANA ANGGELIA

NIM : 05120120028

BUSINESS LAW
FAKULTAS HUKUM
UNIVERSITAS PELITA HARAPAN
KARAWACI
2015
 ABSTRACT

Torts is any unlawful acts, which bring harm to others, requires that the person issuing the
loss was due to his fault should compensate the loss.1 The causes of injury or disability of a body
or part of it intentionally or inadvertently, entitles the victim the right, in addition to
reimbursement of recovery, to sue for damages caused by the loss.2 Medical malpractice is a
form of professional negligence in which measurable injury occurs to a plaintiff patient as the
direct result of an act or omission by the defendant practitioner .3 Inevitably health circles need
better understanding of the legal aspects in health care.4 In the stages of handling mechanism
medical discipline violations, Indonesian Medical Association (KKI) acting for breaches of
discipline. 5 The abstract of research paper examining and reviewing the authority of medical
practices on perspective of Indonesian law.

Keywords: Tort, Malpractice, Indonesian Medical Practice

1 R Subekti, RT Sudibyo - Jakarta: PT. Pradnya Paramitra, 1995, Aricle 1365

2 Id. at Art.1371(1).
3 John D Blum dalam Hermien hadiati koeswadji, 1998, hal 122-123
4 Amir, Amri. Bunga Rampai Hukum Kesehatan. Widya Medika, 1997. Pg.7
5 Hanafiah, M. Jusuf, and Amri Amir. "Etika Kedokteran dan Hukum Kesehatan." EGC, Jakarta (1999).
 CHAPTER I
INTRODUCTION

Malpractices cases is one of the most central issues related to health law and health care,
Malpractice is also referred to as a wrongdoing (fault) or neglect of duty (negligence). 6
Malpractice has the sense that every medical procedure performed doctors or persons under its
control, or health care provider who performed on patients, both in terms of diagnosis,
therapeutic and disease management is done in violation of the law, decency, decency and the
principles of good professional committed intentionally or due to inadvertent wrong acts that
cause pain, injury, disability, damage to the body, death and other losses which cause the doctor
or nurse should be responsible for both administrative, civil or criminal.7 Specifically in health
care, negligence also associated with services that do not meet professional standards (standards
of medical services) which in practice also need to be used to distinguish between the risk of
medical and medical malpractice. If the patient has to be done according to the standard
procedure of medical services, but patients ultimately serious injury or death, this is a medical
risk. while for patients who experience severe injuries or death as a result of doctors perform
services under medical standards, then this means there is medical malpractice.8

6 Ameln, Fred. Kapita selekta hukum kedokteran. Grafikatama Jaya, 1991. Pg.83
7 Munir Fuady, 2005, Sumpah Hippocrates Aspek Hukum Malpraktik Dokter p. 2&3
8 Isfandyarie, Anny. Malpraktek dan resiko medik dalam kajian hukum pidana. Prestasi Pustaka Publisher, 2005. P.125
 CHAPTER II
MEDICAL MALPRACTICE

Torts in its development expanded to four criteria. First, contrary to the legal obligations of
the offender; or both, against the law of the subjective rights of others; or third, against the rules
of ethics; or fourth contrary to propriety, thoroughness and caution that should be owned by
someone in association with other citizens or to property of others. 9 Patients can sue a doctor
therefore have committed torts.10 Each person is responsible not only for losses caused by his
(torts) actions, but also for any damages caused by negligence or less carefully.11 The world of
medicine who once seemed unattainable by law, with the development of public awareness about
the need for legal protection is a basic social rights often develop into criminal matters. 12
Omission or negligence essentially contains three elements.13 Thus, in order for a medical action
is not against the law.14

As described above, criminal law adheres to the principle of "no punishment without
fault", furthermore mentioned in article 2 of criminal code. 15 The formulation of this article
determines that every person residing in the jurisdiction of Indonesia, are held to criminal
liability for the mistakes they made. Based on that provision, the medical profession is
inseparable from the provisions of that article. Moreover, a doctor in the daily work is always
engaged with the actions set out in the Criminal Code.16

9 Bambang Heryanto, 2006, Diktat Lecture on Torts, Purwokerto: Faculty of law Jenderal Soedirman University, P.21
10 Subekti, R., and R. Tjiro Sudibyo. "KUH Perdata." Jakarta: PT. Pradnya Paramitra (1995). Art.1365 "Each torts, which bring harm to
others, obliging people, who due to his fault error issuing it, is responsible for the losses"
11 Subekti, R., and R. Tjiro Sudibyo. "KUH Perdata." Jakarta: PT. Pradnya Paramitra (1995). Art.1366
12Malpractice case that had become popular is Prita Mulyasari, where her laboratory tests showed positive dengue fever (heat

complaints three days, severe headache, nausea, vomiting, fatigue, sore throat and no appetite), but after inappropriate tests and
diagnostics. Dispute happened, Prita won because of the support of the community. Court Judgment No. 300/Pdt.G/2009/PN.Tangerang
RS.Omni Internasional v. Prita Mulyasari
13 Anny Isfandyarie, Malpraktek dan Resiko Medik, Ibid, Hal 125 First, the perpetrators do (or not do), so with the so doing (or not doing)

has committed tort. Secondly, the perpetrators have committed negligent, careless, or less thinking. Third, by artificial offender can be
censured, and therefore the perpetrators must be to account for his actions that occur as a result of it.
14 Id, Hal 127 Do accordance with the standards of the medical profession, who reflected:

A. Medical indication in accordance with the purpose of the concrete treatment

B. Carried out in accordance with standard medical science procedure.
The fulfillment of the rights of patients regarding informed consent. We need to realize that the medical action of doctors indeed
sometimes produce unintended consequences by both physicians and Patients, though doctors have tried the maximum, Because nearly
all medical procedures Essentially the maltreatment is justified by law, so the likelihood of risk of injury or even death is hardly to avoid,
especially if actions related to anesthesia and surgery.
15 "the criminal provisions in Indonesian law applicable to any person who commits an offense in Indonesia".
16 Bahder Johan Nasution, Hukum Kesehatan Pertanggung Jawaban Dokter, Rineka Cipta, Jakarta, 2005, Hal 74
Indonesia adapt the doctrine of res ipsa loquitor as well. If a mistake is made very clearly do not
need an expert witness again, the proof can be charged to the doctor. There are the terms that
ipsa res loquitur can be used as the basis of evidence.17

17 King, Joseph H. The law of medical malpractice in a nutshell. West Group, 1986. Namely:
1. Resulted form an occurrence which does not ordinarily occur in the absence of negligence;
2. Been caused by an instrumentality or agency under the exclusive management or control of the defendant;
3. Occurred under circumstances indicating the injury was not due to any voluntary act or negligence on the part of the plaintiff.
 CHAPTER III
DUTY OF INDONESIAN MEDICAL ASSOCIATION

Medical practice set of patients or relatives of patients who feel harmed by the practice of
medicine that they consider appropriate can complain about the case through the Indonesian
Medical Disciplinary Council/MKDKI (non-litigation path). Other option, patients or relatives of
patients who suspect malpractice has occurred over the patient it is possible to simultaneously
take the path of litigation, namely through the civil or criminal.18 MKDKI authority to examine
and give a decision on the complaints relating to discipline doctors, autonomous with institution
of the Indonesian Medical Association (KKI). Sanctions can be given a written warning,
revocation of registration or license the practice and / or the obligation to follow education or
training in educational institutions.19

The procedure for the handling of cases by MKDKI been regulated.20 Form of complaints
possessed evidence and statements about the truth of reports, clarification by a special officer of
MKDKI needed. Then continue with "Preliminary Examination", MKDKI check whether the
complaint is accepted, not accepted or rejected. If accepted, the Chairman of the Majlis MKDKI
formed Discipline Examiner (derived from MKDKI member) who decide the denouncement can
not be accepted, rejected or termination of the examination (subsequent investigation) to collect
information and evidence, upon investigation, there was a disciplinary hearing.21

If the inspection found violations of ethics, it will sent to Indonesian Doctors Association.
The case will then be handled by the Honorary Council of Ethics Indonesia (MKEK), if a case of
alleged medical malpractice complaint by the community and found violations of the law case
will immediately taken to court to be examined. Law on Medical Practice only focus on the
disciplines of medicine alone, issue of civil lawsuits or criminal justice submitted to the public
by means of expert witnesses (expert witness testimonum) if necessary.22

18 Nomor, U. U. (29). tahun 2004 tentang Praktik Kedokteran. KOMPETENSI UTAMA, 1. Article .66
19 Indonesia, Konsil Kedokteran. SK. Konsil Kedokteran Indonesia Nomor 21A. KKI/KEP/IX/2006 tentang Standar Kompetensi Dokter,
2006. Article 67.
20 regulated in Indonesian Medical Association (KKI) Regulation No. 2 of 2011 on the Procedures for Handling Cases of Alleged Violation

of Discipline Doctors and Dentists, Article .3

21 Indonesia, Konsil Kedokteran. SK. Konsil Kedokteran Indonesia Nomor 21A. KKI/KEP/IX/2006 tentang Standar Kompetensi Dokter,

2006.
22 Yunanto, A., & Helmi. (2010). Hukum pidana malpraktik medik. Penerbit Andi.
 Indonesian law provides full rights for the people to obtain justice and to obtain it done by
filing an application, complaints and lawsuits.23 The case was tried through a judicial process
that is free and impartial, with reference to the procedural law which guarantees an objective
examination by judges. 24 Even in indonesia the criminal law recognize the abolition of the
criminal in the health service, which is a justification and an excuse (Natanson and Clients,
1960), but does not necessarily remove a criminal offense for the medical profession. This
jurisprudence contains "consent (Informed Consent)" as the suppression of crime. A justification
and an excuse for the actions of doctors, only found in certain exceptions.25

23 Both in civil, criminal or administrative

24 Darwan Prinst, sosialisasi dan diseminasi penegakan hak asasi manusia, Citra Aditya Bakti, Bandung, 2001
25 Nasution, Bahder Johan. Hukum kesehatan: pertanggungjawaban dokter. Rineka Cipta, 2005. P.74
 CHAPTER IV
SANCTION
Sanctions in criminal law is basically a sanction in the form of torture or restraint of
freedom against the offender. With hope after serving criminal sanctions would inflict a deterrent
effect against perpetrators or no preventive element against another person (people). 26 Whoever
due to harm caused death of people sentenced to prison for five years or shortfall forever one
year.27 Anyone who due to his fault causing severe injuries punished with imprisonment of one
year forever and whoever causes the fault of people injured in such a way that person is sick or
temporarily unable to perform his or her job temporarily, be punished with imprisonment for
ever nine months or forever imprisonment sentence of six months or a maximum fine of Rp in
height .4500, -.28 If crime described in this chapter is done in making an office or employment,
the penalty can be coupled with 1/3 and crime actor can be fired from his job, in which the crime
was committed and the judge may order that the decision was announced.29
Actions or deeds doctor as legal subjects in the association community, can distinguish
between everyday actions that are not related to his profession and his actions relating to the
implementation of the profession. Likewise, the legal responsibility of a doctor can distinguish
between legal liability that are not related to the implementation of the profession, and legal
liability related to the execution of the profession.30 Crimes against life in the Criminal Code can
be distinguished or grouped on two grounds, namely on the basis of elements of mistake .31 In
criminal law sanctions based on error or negligence whether intentional or unintentional, for
willful misconduct that resulted in the death of the victim equated with murder, and if the victim
did not die so-called maltreatment with maltreatment sanctions.32

26 Mudakir Iskandarsyah, Tuntutan Pidana dan Perdata Malpraktik, P.91

27 Mardjono, R. "Komplikasi pasal-Pasal Ketentuan Pidana dalam Peraturan Perundang-Undang di Luar KUHPidana." (2006). Art.359
28 Id. Article 360
29 Indonesia, and Soesilo (R.). Kitab undang-undang hukum pidana (KUHP): serta komentar-komentarnja lengkap pasal demi pasal.

Politeia, 1976.
30 Komalawati, Veronica. Law and ethics in the doctor's practices. Pustaka Sinar Harapan, 1989.
31 Adami Chazawi, crimes against Body and Life, PT. Raja Grafindo Persada, Jakarta, 2003 ,Two groups of crimes against life, namely:

1. Crimes against the life of the performed by intentionally (dolus misdrijven) is evil contained in chapter XIX of the Criminal
Code article 338-350
2. Crimes committed by unintentional (Culpose misdrijven), contained in chapter XXI (specifically article 359) 31

32 Mudakir Iskandarsyah, Prosecution of Criminal and Civil malpractice, Page 91 demand

 CHAPTER V
CONCLUSION

Definition of medical malpractice in terms of civil law are errors or omissions by the
doctor / medical / hospital in performing the obligations of his profession. 33 There are the basics
of the lawsuit that has been set in the normative legislation to sue civilly.34 In addition to the
normative terms, to avoid any legal vacuum, then there is a theory / doctrine which has
consistently been used as guidelines in conducting even basic civil suit, that the doctrine of res
ipsa loquitur. Judges will greatly depend on the objectivity and clarity of the information given
by experts (expertise). Notch medical documents such as medical records, informed-consent
(IC), reports the results of investigations, as well as record the daily observation and treatment it
can be used as evidence in court. Setting overall responsibility law doctors who perform medical
malpractice, basically based on error or negligence whether intentional or unintentional for
willful misconduct that resulted the die of the victim equated with murder, and if the victim did
not die so-called acts of persecution with persecution sanctions.

There are some things that the reason negation sentence thus freeing doctors from lawsuits,
namely: Risk of treatment, medical accidents, Contribution Negligence, Respectable minority
rules and error of (in) judgment, Volenti non fit iniura or asumption of risk, and Res Ipsa
Loquitur , MKDKI by KKI authority to examine and give a decision on the complaints relating
to discipline doctors and dentists.35

TOTAL : 2481 WORDS ( EXCLUDE COVER )

33 Doctor malpractice is a form of negligence of doctors in making medical action resulting in pain, injury, disability, damage to the body,
death and other losses. Second, doctors accountable for malpractice cases that harm patients because of an unlawful act that is contrary
to the legal obligation of the perpetrator, unlawfully subjective rights of others; against the rules of decency, and contrary to decency,
accuracy and caution that should be owned by someone. Third, the patient as a victim of malpractice doctor, should receive legal
protection, in accordance with the doctrine of Res Ipsa Loquitur (siding with the victim) by demanding material and immaterial damages.
34 Civil Code, Law No. 23 of 1992 jo. Law No. 36 Year 2009 on Health, Law No. 29 Year 2004 regarding Medical Practice, and other

regulations related to health care issues.

35 MKDKI can determine whether there is a mistake made doctors and dentists in the application of the disciplines of medicine and

dentistry. This institute is an autonomous institution of the Indonesian Medical Council which is independent in carrying out their duties.