Comparative Perspectives on Clinic Corporate Liability: Reconstructing Patient Protection in Indonesian Health Care Law -By Dr. Cintya Agustina Yuristasari

The law around the world is slowly owning up to one uncomfortable truth: when a patient suffers harm in clinic, it is seldom just “one bad doctor.” It is a failure of the system, one that is created, paid for and managed by private sector players. But Indonesia, steadfast in its old fashioned traditions of blame (the culture has a strong preference for individual sin) and virtue (corporate clinics always make money but they never seem to be held to anything like clear-cut, hard-edged responsibility), feels it must still babble on as needed.

Clinics and hospitals are sued as institutional defendants under doctrines of vicarious liability and corporate negligence, they are viewed as active risk creators obligated to internalize the cost of harm not neutral, static backdrops to mistakes committed by individuals. While fault still has to be established, the legal fantasy effectively imagines a world where the clinic emerges as a powerful party that owes duty of care, can breach such duty of care and is responsible for paying for those consequences. Germany followed with its own story: civil law codifications; the 2013 Patientenrechtegesetz, which along with doctrines like reversal of the burden of proof in serious errors or documentation failures push jurors cautiously onto one side; and other concepts that put clinics on the hot seat for not orally informing or adequately documenting. Negligence: Australia has gone statutory by way of Civil Liability Acts, making standards more exact, causation clearer and confirming both vicarious and direct institutional liability, with the clinic itself as a legal person capable of independent systemic duty.

In comparison, there was the recent witnessing of clinics becoming a major part of health markets in Indonesia (for primary care to high risk aesthetic procedures) yet corporate liability remains ambiguous within general provisions and administrative regulations. The exhaustive law currently only discusses clinic licensing, OSS RBA based risk tiered permits,minimum service standards and a long list of obligations in the ministerial regulation (which follow this Bill) yet is entirely silent on perhaps the most pertinent question: when a clinics system harms a patient, how and per what order is that clinics corporation legally liable? Health Law provides a clearer regime of responsibility for hospitals including express norms on when they are and are not liable; while clinics, despite performing similar or identical procedures, exist in a legal grey zone.

It is not a neutral asymmetry, it is one that is structurally violent. Clinics function as profit driven businesses, take advantage of lax licensing and market demand but shift the burden of harm onto three vulnerable groups: patients, individual healthcare providers and the public social security system. Despite the wrongness, doctrine and practice still automatically pursue the physician’s “kesalahan profesional;” while the organizational decisions that led to a condition unsafe for patients, limited workforce, unreasonable workloads, absence of subject matter specific SOPs, non-compliance with even minimum service standards, hover in the background like mere noise rather than target center.

It is this comparative experience that reveals how political the design of this system was. This litigation pressure to recognize multi party liability, along with the resulting deep pockets large enough to attract plaintiffs in such claims was illustrated by how clinics and HMOs have become unavoidable visible defendants in lawsuits in this litigation-heavy system. Germany illustrates how a civil law system can adjust evidentiary standards in response to asymmetries in information and transfer burdens of proof onto the institution once it has possession of the paper trail. The Australian example reveals that codification can limit crazy damages while also increasing corporate liability by embedding standards of duty, breach, and causation in its institutions rather than just the persons. In this latter set of examples, Indonesia has deliberately stopped one step earlier; it borrows rhetoric on patient safety and risk based regulation, but then declines to close the loop by detailing effective corporate liability for clinics.

The result is a brutal irony. The constitutional and statutory texts underscore health as a fundamental right that is firmly rooted in the public interest, and frame clinics as an arm of state or collective machinery dedicated to the realisation of that right. But when there is wrongdoing, the individual has been pushed back into a quasi private battle: show particular fault of an individual doctor, work through murky protocols within an institution, and accept that any violations of administrative standards are generally not leading to concrete disciplinary action (rather the standard is warnings or temporarily suspensions or license issues only). Although ministerial regulations on standards and risk based licensing are technically “normative benchmarks”, in practice they operate as so much technocratic wallpaper on corporate non compliance unless they are insulated by direct civil, if not criminal, consequences.

So a serious reform of the Indonesian health care law to protect patients must stop with the tinkering around the edges and go to the heart of the issue: invisibilization of the clinic as a corporate wrongdoer. That means writing in at least four things into black letter law, not preambles and policy speeches: clear and unambiguous vicarious liability of clinics for acts of all health workers under their control; direct liability for systemic failures (management, SOPs, staffing/staffing levels/equipment/risk management); explicit use of administrative breaches as strong presumptions of civil fault; structured/prescribed pathways to out of court settlement that start with the clinic as debtor, not by-stander.

Comparative law is not a way to import the idols of foreign lands. Its about rooting outhousehold alibis. The American fetish for juries, the German fetish for documentation, and the Australian fetish for negligence: none of these can countenance modern health law that allows corporate clinics to have a risk profit and no responsibility over harm. Indonesian law maintains clinics in a pleasant twiligh, tlicensed at business, idolized as partners but spun only weakly into culpability but without significant reform of this parallel passage of the West upon Southeast Asia, patient protection will remain mostly aspirational and each new regulation yet another knotted layer of paper against the same structural wound.

Dr. Cintya Agustina Yuristasari, SH, MH

Faculty of Law University 17 August 1945 Surabaya and Member of Law Firm Victorious Indonesia