Purpose of the Study: This research aimed to analyze legal considerations in malpractice cases carried out by ophthalmologists and analyze the differences between medical risk and medical malpractice

Methodology: This research is normative legal research using the statute approach and case approach of medical malpractice cases. The research object discussed is the Supreme Court Judgment Number 277/PDT/2020/PT SBY and Supreme Court Judgment Number 338 K/Pdt/2020. The analysis technique implemented descriptive qualitative analysis.

Results: The results of the research discovered that the judge's consideration in issuing nt in malpractice case by an ophthalmologist was inconsistent and defied the applicable laws and regulations, in which Articles 359 and 360 of the Criminal Code the judge should have imprisoned to the perpetrator. Apart from that, the judgment 277/PDT /2020/PT SBY is included in the medical malpractice action which is shown by the damages given to the patient and an apology from the doctor.

Applications of this study: Research suggests the conformity of judgment with laws and punishment that should be given to doctors who committed medical malpractice from the proof and applicable laws and regulations.

Novelty/Originality of this study: The study analyzed the judgments of medical malpractice cases through 6 court processes.

Keywords: Medical Malpractice, Liability, Criminal Law

Abstrak / Abstrak

Tujuan Penelitian: Penelitian ini bertujuan untuk menganalisis pertimbangan hukum dalam kasus penyalahgunaan yang dilakukan oleh dokter mata dan untuk menganalisa perbedaan antara risiko medis dan penyimpangan medis

Metodologi: Penelitian ini adalah penelitian hukum normatif menggunakan pendekatan hukum dan pendekatan kasus kasus kasus penyalahgunaan medis. Objek penelitian yang dibahas adalah Keputusan Mahkamah Agung Nomor 277/PDT/2020/PT SBY dan Keputusan Pengadilan Tinggi Nomor 338 K/Pdt/2020. Teknik analisis yang digunakan adalah analisis deskriptif kualitatif.

Hasil penelitian menemukan bahwa pertimbangan hakim dalam mengeluarkan nt dalam kasus penyalahgunaan oleh seorang dokter mata tidak konsisten dan menantang hukum dan peraturan yang berlaku, di mana Pasal 359 dan 360 dari Kode Kriminal hakim harus menahan pelaku. Selain itu, putusan 277/PDT/2020/PT SBY termasuk dalam tindakan penyalahgunaan medis yang ditunjukkan dengan kerusakan yang dialami pasien dan maaf dari dokter.

Aplikasi dari penelitian ini: Penelitian menunjukkan kesesuaian penilaian dengan hukum dan hukuman yang harus diberikan kepada dokter yang melakukan penyalahgunaan medis dari bukti dan hukum dan peraturan yang berlaku

Kebaruan/Orisinalitas: Studi ini menganalisis penilaian kasus penyalahgunaan medis melalui 6 proses pengadilan.

Kata Kunci: Penyalahgunaan Medis, Tanggung Jawab, Hukum pidana

Health is a health condition, physically, mentally, spiritually, and socially that enabling any person to live a productive life socially and economically (Law No. 36 of 2009). According to Plianbangchang (2018), health is an organism's condition or one of its parts in which it performs vital functions normally or correctly. Health is a positive concept that emphasizes social and personal resources, as well as physical capacities (Krahn et al., 2021). Health is a need for everyone that puts the urge to provide adequate and competent health personnel. This corresponds with the 1945 Constitution of the Republic of Indonesia, Article 28 H Section (1) that every person has the right to live in prosperity physically and spiritually and has the right to obtain medical care, and the state is obliged to provide them. Health is the most dominant aspect in contributing to the quality of human resources (Pohan & Halim, 2016).

Health comprises two elements, namely the health efforts and the health resources (Samosir, 2021). Health efforts, one of which is health maintenance divided into maintaining public health and maintaining individual health. Maintaining individual health is referred to as medical maintenance. Meanwhile, health resource includes health facilities and infrastructure, such as hospitals, health centers, clinics, doctor's practices, and health workers (doctors, nurses, pharmacists). Health works are performed by health resources who are bound by medical, legal, and moral principles, and decency (Supriadi 2015).

A health worker is any person who is dedicated to the health sector and is knowledgeable and/or skillful through education in the health sector which of certain types requires authority to perform the efforts (Law No. 36 of 2009 concerning Health). Health workers have important roles in giving direct assistance to patients (Jatoba et al., 2020). A health worker is any person who provides care and services to ill patients either directly as a doctor and nurse or indirectly as an assistants, laboratory technician, or even medical waste handler (Joseph & Josep, 2016). Health human resources play a role and strategy in implementing health efforts and supporting the achievement of Universal Health Coverage (UHC) and Sustainable Development Goals (SDGs) (Prilly et al., 2020).

Health workers serve as the frontline professionals to carry out treatment measures for those with health problems. The treatment process cannot be carried out haphazardly, several requirements must be met before treatment is given. Implementation of individual health services by doctors or other health workers can only be carried out after obtaining the patient’s consent (Ampera, 2022).

Health services aim to execute efforts to prevent and treat a disease, including medical services based on the individual relationship between a doctor and a patient who requires treatments for the disease they are suffering from (Sadino dan Rahmatullah 2021). In fulfilling their duties, health workers are required to behave professionally. This is proven by Article 66 Section 1 Law Number 36 of 2014 that health workers should abide by professional standards, health service user rights, health standards, professional service standards, and operational standards (Law No. 36 of 2009 on Health). Moreover, the healthcare workforce not only has professional and legal obligations to provide care for patients but also moral obligations (Supady et al., 2021). The moral obligation is reflected by the reception of professional codes such as the Hippocratic Oath and the regulations of medical and relevant health associations. According to Law No. 17 of 2023 On Health, every healthcare worker shall provide health services following professional standards, professional service standards, standard operational procedures, and professional ethics as well as patient needs. This is consistent with the medical oath that healthcare workers will provide the best public health services possible by continuing to improve their knowledge and skills according to developments in Public Health Science. However, it is not only related to ensuring the competency of health workers, the government, through the Minister of Health, implements medical service standards which encompass the National Guidelines for Medical Services (Pedoman Nasional Pelayanan Kedokteran, hereinafter abbreviated as PNPK) and SOP from professional organizations to be adhered to by every healthcare worker on duty.

In reality, the Indonesian Government has issued a Law on Legal Protection for Patients who suffer losses due to medical malpractice. Health Law No. 17 of 2023 states that any person has the right to compensation due to medical errors by the health workforce. Apart from that, Article 1365 of the Civil Code also protects patients stating that every person (medical staff) whose negligence results in the loss of another person (patient) should provide compensation to the patient. However, further studies are important regarding law enforcement in cases of medical malpractice.

Nonetheless, the reality indicates the opposite; some health workers do not perform patient treatment per the required standards and rules. Sometimes health workers make mistakes/negligence in their services that cause material or immaterial damages to patients such as disability, paralysis, or death. Discrepancies are evident in the actions taken by medical personnel on their patients. In the Indonesian Medical Ethics Code, doctors must be honest when dealing with patients and colleagues (Indonesian Code of Medical Ethics 2002).

An instance of an alleged case of malpractice or medical error was found in a suspected case of malpractice by a doctor who harmed the patient with a tear in the rear capsule (posterior capsule rupture). This case was discovered in the Surabaya District Court Judgment Number 76/Pdt.G/2017/PN. Sby, High Court Number 338 K/Pdt/2020, and Supreme Court Judgment Number 277/PDT/2020/PT SBY. In the Supreme Court Judgment Number 277/PDT/2020/PT SBY, the patient admitted that the ophthalmologist was not forthright about the mistakes he had made, the patient suffered a more severe physical loss, a tear in the rear capsule (Posterior Capsule Rupture). In judgment number 277/PDT/2020/PT SBY, the defendant asserted he was embarrassed to admit his mistake in the first surgery and apologized to patient Y as the plaintiff. However, the judge's judgment supported the defendant, stating that the letter of apology from the defendant was valid and did not impose sanctions on the defendant. In this judgment, the plaintiff is charged with court costs. However, the cassation judgment Number 338 K/Pdt/2020, states that the letter of apology signed by the ophthalmologist as the defendant was invalid and did not have legal force so the defendant was sanctioned to pay court costs without any special sanctions related to medical practice errors.

Each decision exhibits that a different legal decision remains. The differences in judgments Number 277/PDT/2020/PT SBY and Number 338 K/Pdt/2020 based on results show that there are unclear dynamics of legal justice in the implementation of health services in the community; a loss suffered by the patient for medical action cannot be immediately deemed as an act of malpractice. If a medical action performed by a doctor or other medical personnel has received consent for further medical action and is performed carefully and following the procedure but disability or death occurs, it can be referred to as a Medical Risk (Isfandyarie, 2005). Death or disability of patients is not perpetually a doctor's negligence, but a risk that might occur in the medical actions of the doctor. But to prove this, sufficient and valid evidence is required.

The dissimilar in the results of the legal trial of Patient Y as a victim of malpractice in judgments Number 277/PDT/2020/PT SBY and Number 338 K/Pdt/2020 is the background for a judiciary analysis of medical malpractice actions carried out by an ophthalmologist. The absence of apparent rules in determining whether a case can be classified as malpractice or medical risk prompts legal loopholes that can be exploited by medical personnel to avoid sanctions for malpractice. This research aimed to analyze legal considerations in malpractice cases carried out by ophthalmologists. Also, this research analyzed the differences between medical risk and medical malpractice.

This research is normative legal research, research that uses legal materials in the form of court judgment and literature studies concerning the Medical Law practice and the Civil Code as well as literature relevant to the material discussed (Benuf & Muhamad, 2020). Normative Legal Research is referred to as library research, a research carried out by searching or reviewing, and analyzing library materials or ready-to-use document materials, such as laws and books, especially those related to malpractice cases (Arianto, 2018). In the normative legal writing method, the author examines positive legal provisions to find legal rules, legal principles, and legal doctrine to solve the legal issues concerned (Michael & Boerhan, 2020). The research problem approach method used the statute approach, which this approach identifies court judgments in Indonesia and which one is appropriate and related to the subject of the study (Supryadi, 2021). The authors implemented the literary approach by studying books and legal regulations related to this research (Saleh & Upik, 2023).

This approach to legal issues is interpreted as research that applies statutory regulations as the initial basis and focus of research (Hasbullah, 2018). Additionally, the case approach method was also used; an approach taken by examining cases related to the issue at hand and has become a decision that has permanent legal force in Indonesia (Marzuki, 2015). The case approach was carried out by analyzing and criticizing court judgments in Indonesia and Australia that dealt with good faith (Jibril & Talitha, 2021). Researchers utilized the legal material collection method through literature study. Literature study is a series of activities related to methods of collecting library materials, reading, taking notes, and processing research materials (Supriyadi, 2017). A literature study was conducted by examining reference books and the results of similar previous research useful for obtaining the theoretical basis regarding the problem of the study (Sarwono 2016). Literature study is a data collection method that searches for data and information through written documents or electronic documents that can corroborate the writing process (Ajo, 2022). The research analysis method used qualitative analysis to answer applicable legal principles laws and regulations in cases of medical malpractice or medical errors that can be accounted for scientifically. According to Siyoto & Sodik (2015), data analysis is the process of data organization and sorting into patterns, categories, and basic summary units, thus themes can be determined, and working hypotheses can be formulated as suggested by the data research with a qualitative approach is inductive, in which the researcher allows problems to emerge from the data or is left open to interpretation (Sukmadinata, 2017).

A.CHRONOLOGY OF COURT EVENTS

On 28 April 2016, the patient underwent left eye surgery by Dr. X (pseudonym), who is also the main director of the clinic. After surgery, Dr. X conveyed that a second operation would be carried out at Graha Amerta Hospital because the first operation was unsuccessful. Patient Y and his family initially believed this explanation. However, on 9 May 2016, after hours of surgery, Patient Y was transferred to the inpatient room without explanation. After he regained consciousness, Patient Y experienced pain in his left eye but did not understand what had happened because he was covered in bandages. Patient Y got an explanation from Dr. X that the operation was halted due to bleeding of diabetes experienced by Dr. X.

According to Supreme Court judgment Number 277/PDT/2020/PT SBY, On 11 May 2016, the operation on the left eye was ended due to continued bleeding. Patient Y then went to the Singapore National Eye Center on 16 May 2016 for a consultation. Professor ACL, in his medical report, stated that the first cataract surgery brought about the tearing of the back capsule, retention of lens fragments, and non-implantation of the intraocular lens. The second operation was also unsuccessful due to another problem. Medical error in the first operation was committed by Dr. X. He then gave inaccurate explanations to Patient Y and his family post-operation. This is considered as negligence of Dr. X.

Patient Y, who felt deep disappointment, was reportedly irritated frequently and even stopped communicating with his family. However, the first party to file a lawsuit was Dr. X. The following is the order of the judicial decisions that handled the case:

a.Surabaya District Court Judgment Number 76/Pdt.G/2017/PN.Sby

Based on this Decision Dr. X filed a lawsuit against the patient until it was submitted to the court of first instance on 6 July 2017 at the Surabaya District Court. The judicial process announced to:

1.Declare the plaintiff's lawsuit unacceptable, and-

2.Punish the plaintiff to pay court costs of Rp. 651,000,- (six hundred fifty one thousand rupiah)

b.East Java High Court Judgment Number 616/PDT/2017/PT SBY

Based on this decision, it is found that Dr. X represented by his attorney, Mr. TH, filed a lawsuit/appeal to the Surabaya High Court against the appellant/defendant patient. At this appeal, the judiciary decided to:

1.Receive an appeal from the Plaintiff/Appellant;

2.Enforce Surabaya District Court Judgment on 13 July 2017 Number 76/Pdt.G/2017/PN Sby, which the appeal was filed against;

3.Punish the Plaintiff/Appellant to pay the court costs at either court level, which at the appeal level is set at Rp. 150,000 (one hundred and fifty thousand rupiah);

c.Supreme Court Judgment Number 338 K/Pdt/2020

The Supreme Court judgment on 21 April 2020 is the result of an appeal by Dr. X against the respondent Patient after being unable to take the results of the first-level trial at the Surabaya District Court and the Appeal Level at the Surabaya High Court. The cassation level decided to:

1.Dismiss the cassation request from Appellant/ Dr. X

2.Punish the cassation petitioner to pay court costs at the cassation level in the amount of Rp. 500,000.00 (five hundred thousand rupiah).

d.Surabaya District Court Judgment Number 415/Pdt.G/2019/PN Sby

After experiencing several lawsuits by Dr. X, the patient began to get agitated and registered his first lawsuit with the Surabaya District Court on 23 April 2019. Based on the Surabaya District Court Judgment Number 415/Pdt.G/2019/PN Sby, the plaintiff/Patient filed his lawsuit against the Defendant. In the judicial process on 10 Marc 2020 decided that:

IN EXCEPTION:

1. Completely dismiss Defendant I and Defendant II's Exceptions;

IN THE SUBJECT OF THE CASE:

1. Dismiss the Plaintiff's lawsuit and its entirety;

2. Order the Plaintiff to pay the court costs in the amount of Rp. 1,591,000.00 (one million five hundred and ninety one thousand rupiah);

e.Surabaya High Court Judgment Number 277/PDT/2020/PT SBY

On 5 May 2020, the Patient represented by his attorney filed an appeal to the Surabaya High Court. Based on Judgment Number 277/PDT/2020/PT SBY, it is known that the judicial process decided to:

1.Receive an appeal from the Appellant who was originally the Plaintiff;

2.Enforce the Surabaya District Court Judgment Number 415/Pdt.G/2019/PN Sby., on 10 March 2020, which the appeal was being requested;

3.Punish the Appellant - originally the Plaintiff to pay court costs at either level of justice which for the appeal level totaling Rp. 150,000.00, - (one hundred and fifty thousand rupiah).

Until the appeal level, Patient Y who is permanently blind in his left eye after cataract surgery, has not received justice for the damages he has suffered.

f.Supreme Court Judgment Number 1815 K/Pdt/2021

After experiencing 2 defeats in courts of first instance and appellate levels, the patient, through his attorney, submitted a cassation request to the Supreme Court. At this level, the lawsuit of the patient was granted through a trial decision, as follows:

1.Grant the request for cassation from the Patient/Petitioner

2.Cancel the Surabaya High Court Judgment Number 277/PDT/2020/PT.SBY on 16 June 2020 which upheld the Surabaya District Court Judgment Number 415/Pdt.G/2019/PN.Sby on 10 March 2020.

3.Declare that Dr. X was proven to have committed an unlawful act against Patient Y

4.Order Defendant I, Defendant II, and Co-Defendant to pay material and immaterial damages in the amount of Rp. 1,260,689,917 jointly and severally.

Based on the conclusions above, it can be inferred that the judge's considerations in malpractice cases by ophthalmologist in Surabaya remain inconsistent. This is shown by the absence of annulment of previous court judgments, namely at the District Court and High Court levels. Therefore, it can be inferred that the legal courts in Indonesia are not implemented properly and consistently.

B.LEGAL CONSIDERATIONS IN MALPRACTICE CASES CARRIED OUT BY OPHTHALMOLOGISTS

Based on the malpractice case in the Supreme Court Judgment Number 1815 K/Pdt/2021, the Defendant was found guilty. If further analyzed, the sanction against the perpetrator of malpractice does not follow legal sanctions in several laws. Article 359 of the Criminal Code which reads "Any person by whose negligence the death of another person is caused, shall be punished by a maximum imprisonment of five years or a maximum of light of imprisonment of one year" as well as Article 360 of the Criminal Code which reads "Any person through whose fault is caused the serious physical injury of another person shall be punished by a maximum imprisonment of five years or a maximum light imprisonment of one year" show the sanctions given to perpetrators of Malpractice. From the two Criminal Codes it can be seen that the sanction for a mistake that causes another person to suffer damages such as injury, disease, and obstruction in doing activity is punishable by a maximum imprisonment of five years. The absence of imprisonment from the court judgment signifies that the judge's decision was incorrect, even though the Defendant was found guilty. The loss experienced by the patient should serve as evidence error committed by the doctor.

Based on the explanation, it is adequate if the judge at the cassation level punishes Dr. X as Defendant I, Surabaya Eye Clinic as Defendant II, and RSUD Dr. Soetomo as co-defendant to pay material and immaterial compensation of Rp. 1,260,689,917 jointly and severally. However, criminal sanctions should also be addressed to the doctor who commit the malpractice action (Astuti, 2009).

The provision in Article 46 of Law Number 44 of 2009 on Hospital that hospital should be responsible for negligence committed by doctors practicing in hospitals is a burden borne by the owner and management of the hospital. The hospital, upon its status as a legal entity, is given a legal position as a "person" and, therefore is a "rechtsperson", the hospital also bears rights and obligations according to law for the actions it takes (Sjahdeini, 2006). Corporations or legal entities as legal subjects can be held accountable, according to the level of their faults (Andi, 1987). A corporation is a legal entity with members but has its own rights and obligations separately from the rights and obligations of each member (Hatrik, 1996). The status of a corporation is not limited to the concept of a legal entity but also to business entities, whether aa a legal entity or the otherwise (Adhim et al., 2021).

C.DETERMINATION OF CASE AS MEDICAL RISK OR MALPRACTICE

Doctor errors arise as a result of inappropriate actions or failure to comply with medical procedures that should be performed. Doctor’s errors occur due to a lack of knowledge, experience, and/or caution (Aini & Suryono, 2020). Any intentional wrongdoing that is contrary to rules and regulations is regarded as malpractice (Uchenna, 2020). Medical malpractice is part of property and casualty insurance, that is, it can take years to identify and resolve claims involving serious injuries, hence the premiums doctors charge for coverage can result in high coverage rates (Sage et al., 2020). Negligence during health examination that violates procedures or deliberately takes active or passive actions that result in harm to the patient is declared as malpractice (Qomariyah et al., 2018:499; Prihatmini, 2023). Malpractice is any wrong action or lack of skill to an unreasonable degree (Fitriono et al., 2016).

Malpractice in Jusuf Hanafiah's opinion is a doctor's negligence in using the level of skill and knowledge that is commonly used in patients or injured people treatment according to similar standards in one environment (Hanafiah et al., 1999). According to Amri (1997), medical malpractice is a wrong action by a doctor during practice which causes damage or loss to the health and life of the patient, as well as using his expertise for personal gain. Meanwhile, in the opinion of Mariyanti (1998), malpractice may occur in determining a diagnosis, carrying out surgery, treatment, and post-treatment.

To determine whether a violation occurs or does not, it is necessary to analyze unlawful acts under Article 58 of Law Number 36 of 2009 on Health and Article 1365 of the Criminal Code. Article 1365 of the Criminal Code determines that an action can be taken against an act of resistance that meets the following conditions:

a.There is loss

Based on this case, Doctor X's actions were deemed negligent and incompetent, namely leaving the tilted lens and not installing a postoperative dop so that the doctor's actions caused a loss of permanent blindness experienced by Patient Y.

b.There is error

In this case, the doctor was careless, causing permanent disability to the patient. The doctor was considered negligent because he took actions that deviated from the standard operating procedures, which is the age limit for babies to do lens implants when they were one year old. Also, the doctor was regarded as negligent because failed to install dops or eye protection post-surgery, which in certain situations will endanger patient safety.

c.There is a causal relationship between loss and error

Based on this case, Doctor X's actions were negligent and incompetent, that is, leaving the tilted lens and not installing a postoperative dop so the doctor's actions led to a permanent blindness of Patient Y.

d.This act violates the law

Based on this case, Doctor X was negligent and incompetent, that is, leaving tilted lens and not installing a postoperative dop so the doctor's actions led to the permanent blindness of Patient Y. It can be inferred that the causal relationship in this case was fulfilled.

Following that, to determine whether a case can be declared as medical risk or medical malpractice, one can use a comparison chart of medical and medical malpractice risks in Isfandyarie (2005) theory. The following is a comparison of the medical risks and medical malpractice, namely:

Figure 1. Chart of Medical Risks and Medical Malpractice

Source: 1

If an analysis is carried out, the patient trusts and agrees with the medical actions carried out by the doctor. However, with the medical loss on the patient’s end as the plaintiff and the statement of guilt acknowledged by the doctor in the decision, this case should have entered into a medical malpractice case.

In his actions, the doctor had to intentionally hurt or cause injury to a patient's body, the goal was to save the patient. Another example is an obstetrician who performs Sectio Caesaria surgery to save the mother and fetus. Meanwhile, in the conviction, one should first look at the ability to be responsible, in which in criminal law 3 (three) elements should be fulfilled, namely: (Hamzah & Sudra, 2000):

a.The ability to be held accountable for the perpetrator/offender implies that the mental state of the perpetrator/ offender should be normal.

b.There is an inner relationship between the perpetrator/offender and his actions which can be intentional (dolus) or negligence (culpa).

c.There is no excuse for guilt or forgiveness.

Based on judgment Number 277/PDT/2020/PT SBY, Dr. X claimed to be remorseful of the actions taken and made an apology. This has shown compatibility with the element "the ability to be held accountable for" and "there is an inner relationship between the perpetrators/offender with his actions that is intentional". Apart from that, Patient Y's disappointment and disadvantages due to Dr. X indicate the suitability of the element “There is no excuse for guilt or forgiveness”. In conclusion, the actions taken by Dr. X are involved in malpractice actions.

Legal considerations regarding malpractice actions by ophthalmologist indicate inconsistencies in decisions, thereby showing weaknesses in Indonesian legal courts. The absence of criminal liability criminally given to Ophthalmologists suggests the incompatibility of the decision with the applicable laws. Under Articles 359 and 360 of the Criminal Code, the judge should have imprisoned the perpetrator. In determining the case as medical risk or medical malpractice in the Supreme Court Judgment Number 277/PDT/2020/PT SBY, the case should have been submitted as medical malpractice with evidence of damages received by patients and apologies for the mistakes of the doctor.

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