Implementing dispute resolution mechanisms for resolving medical malpractice cases in Indonesia :problems and prospects

Abstract

The existing medical malpractice system in Indonesia has failed to satisfy the need of both patients and doctors. It may also endanger the society. The emphasis on the use of criminal sanction has in fact created more problems rather than giving solution. The ultimate objective of this research is to identify the inadequacies of the existing system of liability and settlement of alleged medical malpractice cases and to propose agendas for reforms. The research was done through both library-based study and field work. It is found that the existing system of liability for medical malpractice has inherent problems embracing legal substance, legal structure as well as legal culture. The absence of legislation governing medical malpractice has created confusion on what medical malpractice is and how to deal with it. Further, the Indonesian society and the law enforcement agencies tend to presume medical malpractice as criminal matter rather than civil matter. Consequently, doctors in Indonesia have become more vulnerable of criminal prosecution. The recent legal policy on the settlement of medical malpractice dispute is to resort to alternative to litigation especially mediation. Section 29 of the Health Act 2009 has made mediation mandatory in the settlement of disputes in healthcare setting, including medical malpractice dispute. Nevertheless, mediation has not been referred to as expected by the relevant parties. The implementation of mediation faces some obstacles especially the lack of the operational rule for mediating such a dispute. This study is significant as it clarifies misconception on medical malpractice and advices the right way to handle medical malpractice cases. This study also provides necessary recommendation for developing the better system of liability and settlement for medical malpractice cases in Indonesia.