From Doctor to Hospital: The Legal Shift in Who Bears Responsibility for Medical Risks in Indonesian Healthcare -By Dr. Bella Agatha Fernando

The result in hospitals in Indonesia is that every undesirable outcome turns into courtroom drama. And the villain is nearly always identical: The individual doctor. We haul them down to the police department and march them in front of news cameras and we shout into social media, often before we ponder the most fundamental question from a legal perspective: was it malpractice or was it medical malpractice?

This desire to put personal blame is not just unfair: it is legally lazy, and structurally lethal. It slows time down and equals risk with fault, outcome with wrongdoing, tragedy with crime. And it overlooks an inconvenient truth: contemporary healthcare is a team sport, not a solo act. The hospital as a system is often more powerful and more accountable than any one physician in a white coat.

Medical treatment is inherently risky. Not a surgery, not a drug, not an intervention is without risk. Sometimes even after following the protocols and guidelines with textbook precision, professional ethics included; a patient might develop complications. But then in Indonesia, bad results are too quickly relabeled as “malpraktik” and hastily pushed into criminal or civil charges. It is a rule of law culture that mistakes disappointment for delinquency.

We weaponize uncertainty by refusing to draw a hard line between “medical risk” and “medical negligence.” This means that doctors are practicing medicine with a sword above their heads. Defensive medicine flourishes: redundant tests, superfluous referrals, circumvention of complicated cases to insulate the practitioner rather than optimum patient care. Ironically, as we attempt to “protect patients” with blanket criminalization, we harm them instead through excessive caution and under-treatment.

Admittedly, our legal architecture is stale for today’s healthcare. Medical risk must not be the sole responsibility of the individual physician but is instead a corporate entity-the hospital. Why? Because now, risk is the result of systems, management decisions, staffing ratios, equipment procurement, policies and protocols. A physician cannot pick up the slack for a broken sterilizer. A hospital with thousands of understaffed cohorts cannot be undone by an internist. The institution is to blame when the system is flawed.

Corporate liability, however, does not permit passing of the buck or placing the blame on doctors. But it’s about placing accountability along the loci of power. Hospitals determine the number of nurses who will be working during nightshifts, how emergency rooms are staffed, how ICU beds are utilized, and whether life-saving equipment is kept running or not. It is both irrational and unjust to blame the last link in the chain, the doctor at the bedside when those systemic choices create or amplify medical hazards.

However, professional discipline should be the first gate (primum remedium). A disciplinary council able to take appropriate actions will be able to distinguish between the unavoidable risks one takes and the unambiguous breach of professional behavior. It can tell: right when the doctor followed standards, its risk there and wrong when the doctor violated protocols, its negligence. Only then should the criminal and civil law be allowed to get into gear. If we do not have this filter then police reports and sensational headlines become a stand in for legal reasoning.

Critics will charge that corporate liability will allow physicians to hide behind hospital logos. That fear is legitimate but misplaced. The solution is not to fall back on a primitive model of individual blame. Which is to have a multi-tiered system of accountability: doctors answer for their practice, hospitals answer for their systems, and the state answers that there are clear operational rules in force which separate risk from blame. The idea is that informed consent needs to be reconstituted around a taxonomy of medical risk that incorporates the idea of minimal risk and lets patients know they are entering the domain of probabilities, not certainties.

Indonesia however, has to make up its mind on the health law regime it desires. One way is the present one: criminalisation of healthcare and all who work in it with every complication a possible case for police investigation and every doctor a potential defendant in waiting. The other is tougher, but more honest: a legal system that recognizes medical risk as part of the deal, punishes real negligence when it happens, and forces hospitals to stand in front of the firing line when the system itself is at fault.

So until we quit sacrificing individual doctors at the altar of public outrage, we will never address the invisible machinery that is what really creates (many) medical harms. But this is what the real challenge is: What if the issue isn’t “bad doctors,” but a legal culture that’s too timid to take on the institutional force of hospitals?

Dr. Bella Agatha Fernando R, S.S, SH,MH

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