Doctors’ Legal Liability for Medical Risks and Legal Certainty -By Dr. Bella Agatha Fernando R

A silent battle rages over who will pay the cost of medical uncertainty, fought in every hospital corridor and behind every hastily signed consent form. Doctors insist that they are being chased by people for doing their jobs; patients insist they are being thrown on the altar of impunity. If hovering above them both is an indecisive system of law, one that, with brutal clarity, still cannot answer the simplest of questions: when is a bad outcome a “medical risk”: When “medical negligence”?

The distinction is not academic. It is the knife edge of lives, careers & public trust. If every negative outcome becomes negligence then we demonstate that medical judgement is a crime and render clinical decision making inertiary. If every negative outcome is labelled as “inherent risk,” we normalise preventable harm and transform the hospital into a legally sanctioned killing field. Whether in Indonesia or the United States, the United Kingdom or Germany, the present global scene remains one where judge and legislature continue to largely delegate this momentous moral decision to abstract yardsticks, hazy expert testimony, and complex legalese that no average patient could ever hope to understand.

Doctors require legal certainty because they operate in an area defined by uncertainty. Medicine is not a contract for results; it is a contract for effort. No surgeon can guarantee survival. No oncologist can promise remission. Nonetheless, prosecutors and plaintiffs’ lawyers often act as though any significant complication is, in effect, evidence of moral and legal dereliction. This lazy conflation is destructive. Doctors are conditioned to practice “defensive medicine”: unnecessary tests, shunning high risk patients, hesitating on necessary procedures, all in pursuit of paper armor for fear of litigation even at the cost of greater expense or suboptimal outcomes.

The medical profession is not blameless in this drama either. For far too many doctors, “risk” is a rhetorical back door that they exit whenever things go awry. Lazy record-keeping ignored, cavalier dismissal of SOPs ignored, incoherent explanations of the risk no one but a pharmecological doctor would get, one set out for laypersons again, patronizing disdain for informed consent, none of these are “medical risks”. These are failures. They are negligence masquerading as complexity. By declining to establish a bright line between acceptable risk and unprofessional behavior, the profession requires legal certainty but not ethical certainty. It is a foolproof recipe for public outrage.

Legal systems have countered by swinging between extremes. In some jurisdictions, judges extend negligence doctrines to encompass virtually any serious harm, motivated by sympathy for devastated patients and mistrust of large hospital corporations. In others, courts withdraw behind a technocratic shell and pay complete deference to professional councils and expert witnesses meaning that victims have little hope of breaking through this wall of institutional self protection. Both extremes are dangerous. This makes doctors an easy political target and fodder for the news media. The latter transforms patients into disposable collateral. This brings neither real legal certainty but both deliver predictable oppression.

What is sorely needed is a new legal architecture for medical risk. The first part is that the law must provide a specific definition of “medical risk” as an alluded negative effect of treatment which persists even when practicing doctors have conformed with professional standards, service standards, normative practices, and ethical obligations. Instead, that definition needs to be codified not just derived from case law and expert testimony. Second, statutes should clearly define this separate from medical negligence, which should only encompass clear departures from those standards, documented, verifiable and subject to open disciplinary and judicial processes.

Third, legal systems need to stop pretending that individual doctors can always shoulder the burden for modern health-care risk. Medicine today is deeply institutional: it is not just the hand that holds the scalpel, but hospital policy, resource allocation, staffing and systemic failures that produce risk. Moving a larger share of liability to corporate responsibility, hospital and health system liability for structural risks, would lay bare the true origins of much harm and diminish the impulse to blame individual clinicians who happened to be present at the time of contact.

Fourth, informed consent needs a radical rethink. What happens in many countries nowadays is cosmetic consent: lengthy forms, hasty signatures, formalistic scripted explanations. If the law continues to regard this charade as adequate “assumption of risk,” it is an accomplice to a fraud. Actual legal certainty requires that patients be shown manageable and obvious risk categories minimal, moderate, high, that are associated with empirical data to determine explicit acceptable risk versus what is negligent. Anything less isn’t consent, it’s bureaucratic theatre.

In their absence, the global debate on doctors’ liability for medical harm will merely be hypocritical. Legislatures will speak of protecting patients and doctor, but in principle protect neither. Outside of these discussions the specter of punishment will continue to hang over doctors with respect to outcomes completely out of his or her control. Whenever a patient seeks accountability for harm that in all likelihood was completely preventable, there will be institutional stonewalls. And confidence in medicine and law, two of the most crucial social institutions will continue to dwindle.

If law is serious about legal certainty, it must forsake the use of vague standards and delegated discretion. It needs to finally articulate, in bold black letter rules, when risk is something to be suffered and when it is a wrong to be redressed. In the meantime, every consent form is an assault rifle, every complication a possible trial of the century, and every hospital a war zone with not only lives lost but faith in justice gone awol.

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