Doctors on Trial: The Global Crisis of Legal Insecurity in Healthcare -By Fransiscus Nanga Roka

All over the world, doctors find themselves practicing medicine in a shadow not cast by sickness, but by law What used to be a profession based on trust and clinical judgment is quickly becoming an extremely risky legal bet one where every decision, even those made in good faith, has the potential for litigation or criminal prosecution.

This is not accountability. It is overcorrection. The surge in medical disputes has spurred a legal reflex across many jurisdictions: punish first, investigate next. Prosecutors enter spaces formerly occupied by expert review boards Criminal negligence is thus redefined as clinical complications. And rather than being assessed with the standards of medical reasonableness, physicians are evaluated by the harsh tool of legal hindsight.

This is a perverse distortion of healthcare itself. Fear is a new ghost writer of medical choices. If physicians order far too many tests, will avoid caring for high-risk patients, and prefers legal defensibility to clinical need. That is called defensive medicine, and it is not merely inefficient; it is toxic. This raises prices, makes timely treatment impossible and actually adds to the dangers which this law intends to combat.

But there is a more egregious problem: medicine is not a science in the conventional sense. It is the information that makes up a probabilistic discipline, driven by uncertainty, incompleteness of data or human differences. By asking a complex profession to produce perfection, legal systems are placing an ambitious burden and then penalizing those who will inevitably failed.

Even worse, the legal risk of healthcare professionals is profoundly asymmetric. Patients should be protected but so should those entrusted to care for them. In many systems though protections for clinicians are still weak, or ambiguous. Criminal law is used where civil remedies would do. In courts of open public opinion, forget about the niceties of professional disciplinary mechanisms. And each day the presumption of good faith, once at the centre of medical ethics, is slowly eroded.

This is not justice. This is the false human right and legal overreach disguised as patient protection.

You are going to see plenty of global ramifications already. Healthcare worker burnout from workload and legal anxiety is on the rise. New career paths, high risk specialties, including surgery and emergency medicine, for example are being questioned by young professionals. In some areas, doctors are opting out completely, refusing to practice in a context in which they can be prosecuted every time that they treat patients.

Your system won’t work if nobody on the frontline dares to do anything.

No, it is not immunity that we need, but equilibrium. We treat malpractice and negligence in legal frameworks differently from medical results that cannot be avoided (i.e. that would occur regardless of the quality of treatment). Criminal sanctions are only for much more egregious conduct not clinical error in good faith. Independent medical review bodies need to be empowered, not sidelined. And most importantly, the law must understand that prosecuting doctors with no regard for necessity does not lead to safer healthcare, it leads to a more careful and ineffective practice of medicine.

The current trajectory is unsustainable. A system that treats doctors as suspects will ultimately be out of doctors willing to take risks and without risk, there is no real medicine. To preserve the humanity of medicine, the law needs to stop putting its healers on trial for their humanness.

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