Criminalizing Complications: How Courts Turn Medical Risk into Guilt -By Dr. Bella Agatha Fernando

In a global landscape that trumpets “evidence-based medicine” the courts in numerous jurisdictions still work to deliver evidence-resistant justice. As a result, too many judges, prosecutors and media outlets seize upon an old story when the outcome of a medical procedure is tragic: A bad outcome means a bad doctor. What ensues is the unbelievably perilous juridical fiction: medical risk disappears, complication is reframed as crime, and physicians are taken to task, not for malpractice on the art of medicine itself but because they live-expectedly or otherwise, in and offer care in a sea of uncertainty.

The uncertainty is part and parcel of medicine, especially very complicated procedures. Every action you make is a calculated gamble, anatomy is variable, comorbidities are unpredictable and human biology does not behave as a machine of order. No serious health delivery system does otherwise. But legal systems do. In the face of public outcry and media storms, courts turn medicine from an “obligation of effort” to an “obligation of result” when faced with a public’s expectation of them. In a world where outcomes are by definition not guaranteed, the doctor becomes a guarantor. This is not law protecting patients; it is law waging war on reality.

Perhaps the most insidious part in this chain of causation is when risk and negligence begins to mix and overlap. Risk: a complication that the doctors are aware of, they expect it to happen, and in some instances, even though statisticially rare but clinically known should be in the realm of risk. This is an essential price in the battle against ailment. Negligence, in contrast, is about a failure to deviate: a deviation from professional standard of care; appropriately kind care, an irruption (the taking up arms against) of protocols. When courts treat severe complications of any kind any kind as “evidence” of negligence, they are not acting as protectors of patients; they are changing the standard of liability altogether by equating harm with fault, outcome with culpability. That is not justice; that populism in judicial robes.

And this is the populism that thrives on fear and spectacle. When a surgeon is accused of doing something wrong media will run stories with clicking headlines about “botched” operations and “killer doctors” that not only pull in views but they also poison the well of evidence before anyone ever goes to trial. Emboldened by outrage, prosecutors widen criminal statutes to make medical cases fit, systems where hospitals are chronically underfunded and training inadequate and regulation of gleaming private clinics chaotic, oversight fragmented. Criminal law is thus deployed against individual doctors and the institutions are obfuscated so that it becomes irrelevant whether their physicians failed to make unsafe conditions safe and instead focus on themselves as an ultimately guilty party in between structural failures. Health policy has quietly become scapegoat doctrine.

There is a chilling consequence. Rational self preservation supercedes when doctors realize a serious complication can always end in police questioning, indictment, and imprisonment. Risk-averse medicine becomes defensive medicine. The safest option is therefore to refuse, refer ad infinitum or postpone rather than attempt to manage that complex, high-risk patient. Avoiding procedures which could save lives but are legally fraught is not a purely medical or scientific problem. The patients pay the highest price: the very ones in greatest need of high stakes, aggressive care are allowed to deteriorate, put on the altar to feed tour prosecutorial zeal.

If courts are concerned with a serious respect for justice, they must draw back the line that was lost between miscalculation and negligence. It means taking medical evidence, experts and overseas standards of unacceptable complications seriously, rather than treating popular outrage as a surrogate for proof. This means, seeing consent not just as a pretty signature, but legally defined acceptance of some risks that patients inherently bear. The consequence of any harmful event that falls within those disclosed, evidence-based risk categories should always be institutional review not criminal indictment.

The stakes are much bigger than the individual doctor. The criminalisation of complications leeches trust in the health system as a whole. Patients misled into the notion that ‘no complication equals competence; any complication equals crime’ will sooner or later come up against the brutal facts of life, while doctors trained under a regime of legal terror will live in fear and return to turfing away at those with genuine needs. A mature legal system does not pander to the public with fables about medicine without risk. This offers the harder truth, that not every outcome will have a good ending even when everyone acts on proper protocol.

Where courts demand that the medical risk be turned into guilt, they are not administering justice, but illusion capabilities. The question is not if we want a risk-and-rule-of-law health system, or a fear-of-handcuffs health system.

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