Doctors And Hospitals: A Legal Perspective On Accountability

Accountability of Hospital and Doctor Based on Civil Law

Hospital is a place of legal relationship between doctor and patient. Although research on medical malpractice in civil law (Grembi & Garoupa, 2013), one of which is the research Burau et al., (2009) who examined health service cases provided by the government using empirical assessments of medical malpractice cases in civil law jurisdictions.

In a bond, there are the rights and obligations of each party. Doctor-patient legal relations also form the legal responsibility of each. For doctors, the medical treatment should be aimed to patient's health benefit is a legal obligation that is fundamental agreement of doctor-patient (contract therapeutic) that in Law No. 29 of 2004 regarding Medical Practice in Article 39 is referred to as the agreement between the doctor or dentist with patient (Chazawi, 2007). Generally, patients come to the doctor to be given medical treatment services while doctors receive to serve patients.

Measure treatment should be based on medical profession standard, standard procedures and general principles of medical professionals. In Act No. 29 of 2004, the measure referred to by the term professional standards and standard operating procedures "(Article 50 jo 51). While in article 44 paragraph (1) referred to as the "standard of medical services or dentist", whose contents are distinguished by the type and level of health care facilities (paragraph 2). The standard of medical or dental services is further stipulated in the Ministerial Regulation (paragraph 3).

From a civil law perspective, medical malpractice occurs when the wrong treatment by doctors / medical personnel in providing services to the patient creates a civil loss. This coincides with the consequences of being a particular criminal element. Elements of physical loss or the lives of patients due to wrong treatment by doctors is an essential element of medical malpractice from the point of civil law including criminal law. With the incidence of civil loss can be used as the basis of the formation of civil liability for doctors / medical personnel and even hospitals. Elements that have been violated are regulated in Article 1365 of the Civil Code, which consists:

• Patients should experience a loss;

• There was an error or omission (in addition to individuals, hospitals can also be responsible for errors or omissions employees);

• There is a causal relationship between the loss and errors;

• The act was unlawful.

Thus, any claim or lawsuit may be filed by the patient to the doctor / medical / hospital if there is a loss caused due to negligence by doctors / paramedics or hospital patient care. Based on the vicarious liability theory, which should be responsible in malpractice case is the supreme leader as a responsible

Accountability of Hospital and Doctor Based on Criminal Law

The fault element ( schuld ) could be minimized if the doctor / medical personnel to apply the precautionary principle in their profession as determined either by size medical profession standard as well as based on the standard operating procedures.

At any medical intervention such as negative risk surgery may occur. Therefore, prior to surgery, doctor is required to explain in advance to the patient or his family the intent and purpose of the medical action and the risks that may arise from the medical / surgical procedure and who is responsible if the risk is true.

Doctor required to provide information clearly to the patient / family in a language that is easily understood so that the patient / family can take a decision without pressure from any party to approve or reject the doctor's medical action to be performed on him / her. If the patient / family agreed to do medical treatment after the explanations, the patient / family signed letters medical action (informed consent) that had been prepared by the hospital.

The problem of criminal responsibility doctors regulated in the criminal code, which covers the legal responsibilities that arise either because of deliberate action / omission, namely Article 267, 299, 304, 322, 344, 346, 347, 348, and 349 of the Criminal Code covers errors based on intent. This deliberate action is influenced by one's inner attitude, in this case the inner attitude of doctors / paramedics. Under normal circumstances, each person has the ability to drive and realize the inner attitude into intentional acts or negligence (culpa).

In criminal law that is used as a measure is not the most cautious person, but rough mistakes ( culpa lata , grove schuld ). So the important thing is the precision and reasonable care that can be expected from a doctor. Not smartest or the most careful doctor, but a reasonable doctor. Therefore it can be said to be their new culpa when he did not know, did not check, do or not do, in the same circumstances, would find, examine, do or not do. Another point to keep in mind that in terms of criminal law, then in terms of issues offense culpa, the emphasis lies on the consequences. Therefore, culpa's inner attitude in criminal malpractice must be a culpa lata (gross negligence, grote onachtzaamheid) which is a form of gross negligence which is fatal and serious, meaning careless maker, the inner attitude does not want to know, even willing to be true, consequences that would occur.

The acts threatened in the Criminal Code are:

• Persecution / mishandling contained in articles 351, 352, 353, 354, and 355;

• The negligence causing death caused by onbewuste culpa and bewuste culpa in article 359;

• The negligence that cause injuries are contained in chapters 90, 359, and 360;

• Abortion is regulated in Article 346, 347 and 348;

• Euthanasia is contained in chapter 344;

Accountability of Hospital and Doctor Based on Administrative Law

From the point of law, administrative law violation is not medical malpractice. However, medical administrative law violations arising nature against the law in the event of malpractice actions that lead to bad consequences to the patient. The losses consequences in the patient are the decisive elements. Violation of medical administration law will lead to occurrence medical malpractice cases.

Violation of the administrative law of doctors is essentially a violation of medical administrative obligations. Doctor administrative obligations can be divided into two, namely administrative obligations that relate to the authority before the doctor did and administrative obligations at the time of the doctor doing medical services. Violation of such administrative obligations may become a medical malpractice, if after the services carried out cause harm to the patient's health or life.

With the fulfillment of Permit Practice, Doctor License and Registration Certificate in administrative doctors already have the authority to make medical services. However, the doctor must also have the ability or competence in carrying out the practice in accordance with his expertise as well as possible and carefully. Criminal acts of medical practice formulated in Law no. 29 of 2004 stems from a violation of administrative law. In addition, a malpractice breach is a Standard Operating Procedure (SOP) for doctors serve patients.

Administrative sanctions may be imposed on a doctor if, upon examination by the Honorary Council of Medical Ethics, the examined doctors is found guilty of violating the provisions required by professional standards and standard operating procedures (regarding the complaint process to applicable administrative sanctions). The examination results from Honorary Council of Medical Ethics in Law No. 29 of 2004 is called the Indonesian Medical Discipline Honor Board. If found violation of medical ethics then Indonesian Medical Discipline Honor Board will forward complaints on professional organizations and Indonesian Doctors Association who take action against the doctor. Administrative sanctions provided by Indonesian Medical Discipline Honor Board are in the form of giving written warnings, revocation recommendation of registration letter or practice license and or obligation to follow education or training in medical education institution. However, this does not rule out the civil possibility or criminal suit from the patient or his family.

One of the hospital's obligations is having to provide good medical equipment. There are several theories that can serve as the basis that hospitals can be held legally accountable i.e. agency theory (patients assume everyone who works in the hospital is hospital agent). In addition to agency theory, hospital accountability can also be assessed through the theory of Respondent Superior or Vicarious Liability (hospital liability / corporate liability).