When ‘Medical Risk’ Becomes a Legal Shield for Malpractice -By Dr. Bella Agatha Fernando

Somewhere between an operating table and a courtroom, a dangerous fiction is being created: the notion that ‘medical risk’ is a neutral scientific fact, not a legal category that doctors and lawmakers have quietly weaponized to escape accountability. Indonesia’s new Health Law is the latest, starkest example but the disease is global.

Consider the case that should haunt every regulator in Southeast Asia: a general practitioner at a Makassar beauty clinic injected a nose filler into a patient who was left permanently blind in one eye. The court acquitted her, viewing the blindness as a foreseeable “medical risk” and not criminal negligence (even though prosecutors claimed she bypassed standard operating procedures). A permanently disabled patient, an alleged procedural violation, and still: no liability. If that’s what “risk” now excuses, the word has stopped meaning anything.

This isn’t a defense of reckless litigation against physicians, frivolous malpractice suits are a real problem and doctors deserve protection from patients who mistake bad luck for bad medicine. But Indonesia’s Health Law No. 17/2023 has shifted the pendulum so far toward physician immunity that “medical risk” now operates as a catch-all alibi. If you adhere to a standard operating procedure, the law all but guarantees you walk free regardless of whether that procedure was ever the right one to take, regardless of whether the harm was foreseeable, and regardless of whether informed consent was a meaningful conversation or a signature extracted in thirty seconds before anesthesia.

Compare this to the countries that doctors actually train in. England’s Caparo test, foreseeability alone isn’t enough to protect anybody, courts still ask if liability is fair, just and reasonable, a standard that keeps physicians honest without criminalizing every bad outcome. Germany’s Patientenrechtegesetz enforces detailed case specific disclosure duties, a doctor cannot hide behind a generic consent form if a rare, albeit severe, risk exists with respect to that patient’s procedure. The German Federal Court has held that even if the treatment is elective, a risk in “one or two out of a thousand cases” has to be disclosed. Indonesia’s regulatory framework, by contrast, treats SOP compliance as a near-automatic exit from liability, a bureaucratic checkbox in place of genuine clinical judgment and patient autonomy. The deeper scandal is structural. Indonesia’s Professional Discipline Council, meant to balance risk and negligence, is administered administratively to the Health Minister, the same executive power that makes its members. This is not independence; this is self regulation with a government seal.

When the referee reports to one team, patients have already lost before the whistle sounds. To doctors reading this worldwide: this is your problem too. Every time a legal system allows “inherent risk” to swallow whole categories of preventable harm, it not only fails patients but it corrodes the profession’s credibility. And public trust in medicine is not based on immunity; it is based on transparent, enforceable standards that separate honest uncertainty from institutional cover-up. A profession that hides behind vague risk doctrines invites exactly the public backlash, defensive medicine, and political interference it claims to fear.This is a problem for doctors reading this across the world: you also. There is no amount of systemic risk data mining that can train away the damage done when a legal system allows such “inherent risk” to consume whole families of preventable harm; each time it occurs, it isn’t just patients who are being failed rather, so too a corroded credibility in the profession. Immunity does not restore public faith in medicine, but enforceable standards and complete transparency between genuine uncertainty and institutional obfuscation do; A profession which cloaks itself in vague risk doctrines will therefore provoke precisely that public backlash, defensive medicine, and political interference with doctors’ autonomy it professes to fear.

There should be no conflict in Indonesia between protecting doctors or protecting patients: it simply lacks the courage to clearly and publicly define “minimal risk,” “significant risk,” and “negligence” (as the CIOMS guidelines already do, along with comparable systems). For now, each acquittal dressed in “medical risk” would be a verdict on the law itself: too vague to deliver justice, all too convenient to fix.

The next patient to be blinded, paralyzed or killed by a known unknown risk would be better off without the legal shrug masquerading as scientific humility.

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

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