Malpractice cases dead on arrival amid lack of legislation

Thursday, May 18, 2006
Hera Diani, The Jakarta Post, Jakarta

Doctors have traditionally occupied a respected and trusted position in society. Yet the numerous stories of irresponsible, money-grubbing physicians would rank some of them in the hall of professional shame with ambulance-chasing lawyers.

The list of victims of their incompetence is long. A two-year-old girl died following the routine procedure of an appendectomy at a hospital in Bengkulu last March. A woman underwent five surgeries for the removal of a tumor from her uterus, only to discover that four of the operations were on her intestines.

Cicilia Djarwati, 70, went into a nearly yearlong coma last year before cataract surgery. Her prescribed medication was too harsh for her heart and caused blood vessels, weakened by a previous stroke, to rupture.

"She has regained consciousness, but can barely move, talk or is aware of anything. Doctors said she could not get any better so we brought her home. Besides, the cost has reached Rp 150 million (US$16,700)," said her daughter Chatarina Mariani Dwiwidyawati.

Her children sued a Tangerang hospital for malpractice, but the case was dismissed on a technicality.

"The judges said we should have filed suit against the hospital's foundation instead of the hospital's management. We're now appealing to a higher court," Chatarina said.
The hospital's director, however, was fired and Cicilia's family has been allowed to pay off the bill in installments.

The country's already complicated, frustrating legal system becomes even more so when involving malpractice or medical cases.

The commonly stated, basic definition of medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and causes injury to the patient.

But there is no single regulation in this country, including the 2004 Medical Practice Law and 1992 Health Law, that defines medical malpractice.

When a case makes it to court, it usually is tried as negligence or accidental injury.

The Indonesian Health Consumer Foundation handled 48 alleged malpractice case from 1998 to 2004, but most were settled out of court. Only two cases have gone to trial, in a lengthy process with the proceedings still continuing.

Aside from the problem of the lack of a legal definition of malpractice, there also are dissenting opinions about other legal issues.

The foundation's Marius Widjajarta said there were no stated standards for the profession, as well as government regulations governing medical and hospital standards.

"We have a medical law with no legal instrument, which is a government regulation, required as operational procedures," said Marius, also a physician.

Cases unravel when they reach court, he said, telling of his own experience as an expert witness in one suit.

"The judges only asked whether there were standards for the medical profession, medical service and hospital service. There are none, so the court then used the Criminal Code. It didn't feel right because doctors are considered the same as criminals."

The Health Ministry argues standards on medical and hospital services are regulated in a decree from the health minister.

"Such standards are very technical, therefore the ministerial decree would be enough," said the Health Ministry's legal bureau head, Arsil Rusli.

The chairman of the Indonesian Doctors Association, Farid Anfasa Moeloek, said it was not easy to set standards for the profession because it was related to a handful of other matters, such as medical service and ethics.

"Professional standards do not stand alone. We also are working to revise the competence standard to be included in the curriculum of medical schools. It's not easy to set a standard because we have a lot of work to do," he said.

According to Farid, who also is the chairman of the Indonesian Medical Council, the real issue was a doctor's dereliction of duty, including carrying out a medical procedure not in line with his or her competence or without complete facilities, like conducting surgery at home.

Of 100 cases of malpractice reported in the past year, he said, only one case was proven after it was "honestly" examined by the Indonesian Medical Honorary Council.
"Many doctors are at a loss because there is no single perception on malpractice. In an alleged case of malpractice, the doctor's reputation is damaged," he said.

Marius countered that patients suffered the most because of the unclear regulations.
"The IDI includes 33 doctor associations, so formulate standards of the profession," he said.

Farouk Muhammad, a professor at the Police Academy, said that health and medical practice laws put too much weight on administrative aspects, particularly on authority, with very few articles on competence or ability.

"Regulations on medical practice or health should have regulated various aspects within the framework of legal protection for all related parties. We need medical penal reform."

Experts recommend the prompt issuance of hospital legislation, now being drafted by the Health Ministry.

Physician Kartono Mohamad said doctors and hospitals tended to blame each other in alleged cases of malpractice.

The government needs to push hospitals to issue regulations on patients' safety to make it clear which party is responsible when malpractice occurs, the columnist added.

"The lack of hospital legislation gives no obligation for a hospital to enact control. Doctors work by themselves with no one keeping an eye on them and controlling them. You can lie in the ICU and the neurologist comes to give you medicine, and afterward another specialist prescribes another medicine even if they contradict each other."

There also is the fuzzy area of where to take complaints, such as to the police or the Indonesian Council on Medical Discipline.

The council tends to hand out disciplinarian action and holds to the profession's esprit de corps, he said, as if a breach of ethics was not a breach of the law.

Labels: health

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