Legal Analysis of The Differences in Perspectives on The Terminology of Medical Malpractice in Indonesia

Abstract

Medical malpractice is defined as the failure of a doctor to adhere to the standards of practice established by their profession, resulting in injury to the patient. However, in public discussions, this term is tendentious and tends to discredit the medical profession. Some health/medical law experts have no objection to the discussion of the term malpractice in the public discourse, while others reject it. There are difference views on the terminology of malpractice from a legal perspective. The purpose of this study is to conduct a juridical review of the use of the term "malpractice" in public sphere, between those who support its use represented by Prof. Dr. Sutan Remy Sjahdeini, SH—and those who oppose it—represented by Dr. dr. Nasser, SpD.V.E, D.Law. The type of research employed in this study is normative juridical research, a research approach grounded in legal norms and data obtained through a literature review. The conclusions of this study are, first, Prof. Remy states that medical malpractice can be committed by medical personnel (doctors) either intentionally or due to negligence. Meanwhile, Dr. Nasser firmly states that medical malpractice contains elements of negligence, not intent. Second, Prof. Remy acknowledges that the term malpractice is used in countries with Civil Law systems like Indonesia in the context of General Criminal Acts, even though this terminology, in its original country (common law), falls under civil law as a tort. Third, Dr. Nasser rejects the narrative of malpractice accusations in the public sphere because this term should ideally be used as a judge's decision in court proceedings, is not found in Indonesian legislation, and is not part of the Civil Law system adopted by our country.