APPLICATION OF RES IPSA LOQUITUR ON

MEDICAL NEGLIGENCE CASES IN THE

PATIENT PROTECTION PERSPECTIVE
By: WUKIR PRAYITNO
Program Doktor Ilmu Hukum
University of 17 Agustus 1945 Semarang

ABSTRACT

Many cases of medical negligence find failures in the court, just because the
injured patients can not produce evidence that shows the starting point of medical
profession standard or medical service standard that they have received from doctor and
hospital. Res ipsa loquitur doctrine (the things speak for it) or the facts spoke for
themselves that can be applied in medical negligence cases in the court, although this
doctrine does not guarantee any victory in every case for the patients.
The formulations of the problem in this research are : (1) could the application of
res ipsa loquitur gives protection to patients from material or immaterial loss as a result of
medical negligence that has been done by doctor and hospital in medical disputes in the
court?; (2) how to apply res ipsa loquitur doctrine if medical negligence happened
because of doctor and hospital in medical disputes in the court?; and (3) why res ipsa
loquitur doctrine is applied to doctor and hospital that does medical negligence in medical
disputes in the court?
This research uses normative juridical approach method which is qualitative with
specification of analytical descriptive research and qualitative data analysis to medical
aspect and interpretation in the context of using res ipsa loquitur to medical negligence in
the court.
According to the results of this research : (1) it is found that with the operation of
res ipsa loquitur doctrine, the burden of the proof starts moving to the one that is a able to
give a complete explanation and make proof become accountable; (2) res ipsa loquitur
must apply to medical cases, because patient is treated unfairly, if his or her rights to use
that doctrine are taken away; (3) res ipsa loquitur will help injured patient because he or
she does not have any medical knowledge about what is happening. If the patient is not
allowed to use this doctrine, it has to be seen as an unfair discrimination; and (4) res ipsa
loquitur can be widely translated to the highest health standard that can be reached by
referring to the processes and the results.
The Ministry of Health of the Republic of Indonesia issue public policy in health
aspect can apply Freies Ermessen (the freedom to act on your own initiative) which is
realized through the formation of Regulation of the Ministry of Health of the Republic of
Indonesia in order to reach substantive justice to medical negligence with applying res
ipsa loquitur for the sake of giving legal protection for the patients in Indonesia.
Keywords: Res Ipsa Loquitur, Medical Negligence, Freies Ermessen, Substantive
Justice, Legal Protection for the Patients

I. PREFACE
A. Background of the Problem

The title of this study actually does not pretend to make the image
of the doctor fade in the eyes of society, given the profession of doctors as
a very noble and honorable profession (officium nobile), as mandated in
the provisions of article 1 paragraph (11) of Law Number 29 of 2004
concerning Practice Medicine that reads:

"A medical or dental profession is a medical or dental work that is

carried out based on a science, competencies obtained through tiered
education, and a code of ethics that serves the community".
From the formulation stated in the Medical Practice Law, it is clear
that doctors are caretakers of the medical profession who certainly also
have professional characteristics as profession professors in general.

Veronica Komalawati concluded that the nature of the profession is

a life call to dedicate oneself to humanity based on education that must be
carried out with sincerity of intention and full responsibility, so that the
medical profession has the following professional characteristics:

(1) It is a high occupation from experts who are skilled and skilled in
applying knowledge systematically.
(2) Having exclusive competence towards certain knowledge and skills
and skills.
(3) Based on intensive education and certain disciplines.
(4) Having the responsibility to develop knowledge, skills, skills, and
retain honor.
(5) Having its own ethics as a guideline for assessing their work.
(6) Tends to ignore control from the community or individuals.
2
 (7) The implementation is influenced by the community, certain interest
groups, and other professional organizations, especially in terms of
recognition of their independence. 1

Parsons, as quoted by Veronica Komalawati, stated the following

special characteristics of the profession:

(1) Disinterestedness, meaning that it does not refer to strings attached.

This value must be used as a normative benchmark for profession
professors.
(2) Rationality, which means making an effort to find the best by
referring to considerations that can be scientifically accounted for.
The realization of the profession work system is carried out based on
rationality which is one of the dominant characteristics of science.
(3) Functional specificity, that is, professionals have authority in society
with a distinctive sociological structure that relies on superior
technical competence that is only possessed by the profession of the
profession concerned. Therefore, a professional is considered a
person who has authority only in his field.
(4) Universality, which is the basis of decision-making not on "the
subject", or personal benefits that can be obtained by the decision
maker, but based on "what is the problem".2

From the description above, it can be concluded that as a

profession carrier, doctors are people who have expertise and proficiency
and skills in medical science who are independently able to meet the needs
of the people who need their services. In addition, the doctor must also be
able to decide for himself what actions to take in carrying out his
profession, and personally be responsible for the quality of the services he
provides.

1
Veronica Komalawati, 2002, The Role of Informed Consent in Therapeutic Transactions: Approval in the
Relationship between Doctors and Patients, A Judicial Review, Citra Aditya Bakti, Bandung, p. 19.
2
Veronica Komalawati, Loc.Cit., p. 19.

3
 When viewed from an authority that relies on expertise and
proficiency competencies and skills possessed by doctors who rely on
superior technical competence, it is clear that the patient's position in this
skill competency is in an inferior position. Patients cannot objectively
assess the professionalism of services performed by doctors, whether they
are done by professional doctors or not. However, patients are free to
determine who patients can give trust to get quality, dignified professional
services. On the other hand, the doctor also believes in patients who come
to him that they need professional services that he must carry out with
sincerity of intention and responsibility to address the patient's complaints.
In order to achieve optimal results, both doctors and patients must be able
to work together.

From the freedom to determine the will, although socio-

psychologically the relationship between patients and doctors is not
balanced as described above, but formally the juridical relationship
between the two parties has the same position. In other words, personal
relationships are horizontal (personal horizontal), so that in the event of
medical negligence in medical practice, doctors often deal with the law,
namely a lawsuit based on default (article 1239 and 1243 Civil Code) and
also can base on illegal acts (articles 1365, 1366, and 1367 Civil Code).

Furthermore, S. Soetrisno stated:

"In the current era of globalization, the medical profession is one of the
professions that have received much public attention, because the nature of
their service and service to the community is quite complex. The
increasing public spotlight is caused by many factors of change, including
advances in the field of medical science and technology, social / cultural
changes and life views including the characteristics of the human resource
community involved in the field of medicine and health as a public service
provider. Likewise, the opposite of the change in the community of service
users in the health sector whose intelligence has increased has made them

4
 more aware of their rights, so that they are quite critical in receiving
services provided by service providers in the medical field. "3
Decreased public confidence in doctors due to the existence of
medical negligence cases made the arrangement of the health system that
prioritizes patient safety needs to be done immediately. Medical
negligence can be triggered by lack of communication, low competence of
health workers, poor management of health care facilities, and weak
supervision.
With medical negligence discussed in this study are:
(1) The first case occurred at Pondok Indah Hospital (RSPI) as Defendant
I along with several doctors and the RSPI Medical Committee as the
Defendant. Defendant I and Defendants and Defendants were found
guilty by the South Jakarta District Court and jointly had to pay
material and immaterial compensation of Rp. 2 billion. The claim was
filed by the patient's heirs namely Pitra Azmirla and Damitra Almira
who were considered by the Defendant to have committed an unlawful
act, resulting in the loss of one's life. The plaintiff felt aggrieved
because he did not know the results of the medical record that the
tumor suffered by the patient was a malignant tumor, resulting in the
death of the patient. The judge's judgment states that delaying the
submission of medical record results is a medical negligence that is
not in accordance with legal provisions. 4
(2) The second case, starting from a patient named Shanti Marina, in
March 2003 had a headache with high body temperature, then the
patient brought his illness to Puri Cinere Hospital which was handled
by Dr. Wardhani, Sp. THT, from a doctor's diagnosis, it was stated

3
S. Soetrisno, 2010, Medical Malpractice and Mediation As Alternative to Dispute Resolution,
PT. Telaga Ilmu Indonesia, Jakarta, p. 1.
4
Extracted from the Decision of the South Jakarta District Court Number: 1809 / Pdt. G / 2006 /
PN. Jak. Cell. dated 30 August 2007 juncto Decision of the Jakarta High Court Number: 218 / Pdt
/ 2008 / PT. DKI 27 November 2008 in conjunction with the Decision of the Supreme Court of the
Republic of Indonesia Number: 1563 K / Pdt / 2009 dated 29 December 2009 in conjunction with
the Decision of the Supreme Court of the Republic of Indonesia Number: 515 PK / Pdt / 2011
dated 02 February 2012 which has permanent legal force (inkracht van gewijsde).

5
 that dizziness caused by the tonsils that enlarged / swelled and was
suggested to be removed (operated on). Then the surgery was carried
out on March 31, 2003. However, after the surgical removal of the
tonsils, the patient actually experienced: the voice became nasal /
bindeng, so it could not communicate smoothly. Patient or victim's
lawsuit against Defendant I, dr. Wardhani, Sp. THT and Defendant II
Puri Cinere Hospital were submitted to the Cibinong District Court
with losses suffered by patients or victims worth Rp.
1,020,825,375.00, in which the Panel of Judges of the Cibinong
District Court granted a request from the patient or victim with the
demands of Dr. Wardhani, Sp. THT has committed illegal acts. 5
(3) The third case, befalling Iwan Setiawan (24 years) who will soon be
graduated, died while undergoing a small operation handled by a
surgeon at Santa Maria Hospital, Pemalang, Central Java, Monday 30
June 2011. It was suspected that this was a malpractice event and
cannot be accepted by the victim's family. The victim intends to
remove a small lump in the lower left cheek of the eye through
surgery. At that time, surgeon Kun Sri Wibowo was met, who said he
could do a small operation under local anesthesia. Then the operation
at Pemalang Santa Maria Hospital was because it was faster, whereas
in the RSUD it could not be directly handled. At the private hospital
the victim entered the operating room at 2:30 a.m. WIB. At that time
the victim's condition was in good condition, after entering the surgery
room and being operated, the victim went into a coma, the body
swelled blue after being anesthetized and finally died. The incident
shocked Rustiatin's mother, because at first she said she wanted to be
sedated locally but in fact was totally sedated. The doctor was judged

5
Extracted from the Decision of the Cibinong District Court Number: 126 / Pdt. G / 2003 / PN.
Cbn, dated 20 July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 /
PT. On August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by the
Supreme Court of the Republic of Indonesia which has permanent legal force (inkracht van
gewijsde). See Tempo Magazine, Special Edition August 17, 2004.

6
 to have committed medical negligence which resulted in the loss of
his son's life. The lawsuit of the parents of the victims (the Plaintiffs)
namely Suwarno and Rustiatin against the surgeon and anesthetist
along with the Santa Maria Pemalang Hospital (the Defendants) were
submitted to the Pemalang District Court with a loss of Rp.
3,042,242,950.00, in which the Pemalang District Court Judge refused
a lawsuit from the patient or the victim's parents. 6
(4) The fourth case, on November 28, 2005 Plaintiff Abuyani bin Abdul
Roni went to Dr. Hospital. Mohammad Hoesin (RSMH) Palembang to
check the left eye, and after conducting an examination by the RSMH
doctor, named Dr. Kiki, the Plaintiff's left eye suffers from cataracts
and can be operated on. The following day, on November 29, 2005 the
Plaintiff underwent cataract eye surgery (left) at the Palembang
RSMH with funding assistance from Pertamina, but the doctor who
carried out the operation against the Plaintiff was different from the
doctor who carried out the initial examination and the Plaintiff did not
know the doctor's name. After the operation, the Plaintiff controlled
his eyes to return to the Palembang RSMH, but it turned out to be
beyond the Plaintiff's estimation, the Plaintiff's left eye being operated
on had to be removed, and on December 7, 2005 the appointment was
carried out in RSMH. Since then the Plaintiff's left eye has become
blind. The plaintiff cannot just accept the blindness of the left eye, in
this case the Plaintiff suspects that there has been medical malpractice
or medical negligence. The Plaintiff questioned the name of the doctor
who carried out the Plaintiff's unknown operation to the Defendant as
the head of the Palembang RSMH, but the Defendant did not want to
give the name of the doctor who carried out the operation. 7

6
Extracted from the Decision of Pemalang District Court Number: 04 / Pdt. G / 2012 / PN. Pml.
February 19, 2013 which has permanent legal force (inkracht van gewijsde).
7
Extracted from the Decision of the Palembang District Court Number: 18 / Pdt. G / 2006 / PN.
Plg dated July 4, 2006 juncto Decision of the Palembang High Court Number: 62 / Pdt / 2006 / PT.
Plg April 13, 2007 in conjunction with the Decision of the Supreme Court of the Republic of
Indonesia Number 1752 K / Pdt / 2007 dated February 20, 2008 in conjunction with the Decision

7
 (5) The fifth case, the incident that happened to Dr. Dewa Ayu Sasiary
Prawani took place in April 2010, at that time Dr. Ayu and her
colleague, Dr. Hendry Simanjuntak and Dr. Hendy Siagian is handling
patients referring to Puskesmas in the Manado area, because of the
urgency of Dr. Ayu performed the Cito Sectio Caesaria surgery, but
the action failed to save the patient's life. After some time after the
incident, Dr. Ayu et al. instead received an invitation from the police.
He was reported by the patient's family for carrying out an operation
without permission. At the trial at the Manado District Court, Dr. Ayu
et al. charged with 10 months in prison, but Dr. Ayu et al. acquitted
because it was not proven to do medical malpractice or medical
negligence. The Public Prosecutor handling the case filed an appeal
and was granted by the Supreme Court in the decision issued on
November 18, 2012. This Cassation Decision ordered Dr. Ayu et al. to
be imprisoned for 10 months. The verdict of Artidjo Alkostar et al,
apparently made the medical world turbulent. Evidently the doctors
throughout the country took to the streets to ask Dr. Ayu et al.
released. Even the doctors went on strike in almost all provinces
because they mourned the punishment of Dr. Ayu et al. The actions of
these doctors bear fruit. In February 2014, Dr. Ayu et al were released
through a decision at the level of Judicial Review. The basis of the
Judicial Review Board grants PK that the convicts do not violate the
SOP (Standard Operating Procedure) in handling the operation of Cito
Sectio Caesaria, so that judex facti's consideration at the Manado
District Court is correct and correct. 8

of the Supreme Court of the Republic of Indonesia Number 352 PK / Pdt / 2010 dated November
1, 2010 which has permanent legal force (inkracht van gewijsde )
8
Extracted from the Decision of the Manado District Court Number: 90 / Pid.B / 2011 / PN. Mdo
dated 22 September 2011 in conjunction with the Decision of the Supreme Court of the Republic
of Indonesia Number: 365 K / Pid / 2012 dated 18 September 2012 juncto Decision of the
Supreme Court of the Republic of Indonesia Number: 79 PK / Pid / 2013 dated 7 February 2014
which has permanent legal force (inkracht van gewijsde )

8
 The various examples of medical negligence above revealed
generally involve patients from the upper middle economic group. Poor
patients are more resigned. Even if there is an alleged medical negligence,
the patient can actually complain to the Indonesian Medical Disciplinary
Board (MKDKI) - Indonesian Medical Council (KKI) or to the Medical
Ethics Honor Council (MKEK) - Indonesian Medical Association (IDI).
The violations handled by MKDKI concern discipline. Sanctions in the
form of written warnings to the temporary revocation of the Registration
Certificate (STR) that makes doctors unable to practice.
Violations handled by MKEK related to ethics. In addition to
MKDKI and MKEK, patients who are victims of medical negligence can
complain to the police / court in a criminal and / or civil manner. The three
processes can run simultaneously in the three institutions.
Based on the description above, the author intends to analyze the
problems in this study with the title: "Application of Res Ipsa Loquitur on
Medical Negligence Cases in the Patient Protection Perspective".
B. Formulation of the Problem
Based on the background described above, the problem can be
formulated as follows:
a. Can the application of the doctrine of the loquitur provide legal
protection for patients from material or immaterial losses as a result of
medical negligence by doctors and hospitals in medical disputes in
court?
b. How can the application of the doctrine of the reselitur if medical
negligence be carried out by doctors and hospitals in a medical dispute
in court?
c. Why is the doctrine of the practice of loops applied to doctors and
hospitals that carry out medical negligence in medical disputes in
court?

9
II. DISCUSSION
A. Res Ipsa Loquitur Can Provide Legal Protection For Patients

This study uses a normative juridical approach with the

specification of analytical descriptive research and qualitative data
analysis of medical aspects and interpretations in the context of the use of
rescriptors against medical negligence in court.

Medical negligence occurs in an inexplicable manner, but brings

the possibility of high negligence and although there is no direct evidence
of the behavior of doctors and hospitals that allow the court to draw a
conclusion on this negligence by applying the doctrine of the rescript of
loquitur.

Res ipsa loquitur means the facts speak for themselves (the thing
speaks for itself) and is considered a method, when the patient proposes
an argument for the purpose of asserting a prima facie case (the dominant
facts) for an impact which is only a fact when accidents occur, giving rise
to prima facie allegations that doctors and hospitals are actually
negligent. How awkward the facts speak for themselves, depending on
the specific conditions of each case.

This study uses the practical reality of medicine to show the care /
service that has been set which has become the standard of care / service
for doctors and hospitals. The principles underlying the evidentiary law
governing the compulsory rules of the household are analyzed in cases of
medical negligence. To summarize briefly, in the law of medical
negligence, that it is intentional or negligent in causing damage to
another body without legitimate justification is wrong. Even errors in the
context of violating legal obligations are an important element to show
accountability. It is also acceptable that legal care / service obligations
paid to patients can arise independently of medical contracts. This is
implicitly related to the fact that patients have surrendered themselves to

10
 medical care / services, because of their professional skills and
knowledge. This is the argument of the author that every event is
detrimental in the medical context, at best can only be considered to
fulfill the element of error. Based on the duty of doctors and hospitals not
to cause and / or cause harm by assuming judicial investigations of errors
are determined by weighing competing norms and interests, to focus on
whether to "make sense" to take responsibility. In this case the author
explores aspects that can refute an assumption of a mistake in a criminal
act in the health sector. In health law the approval is given by the plaintiff
(patient) who justifies the actions of the defendant (doctor and hospital)
and the law then accepts it as legal. Inadequate disclosure of the absence
of informed consent is part of the element of error. If appropriate and
adequate informed consent has not been given, the court will find the
defendant (doctor and hospital) responsible for violating his duties and
only related to the element of error, but other elements in the offense still
have to wait. It should be noted that without patient consent, doctors and
hospitals cannot justify their actions. It is also questionable, if a doctor is
to succeed by a defense based on "volenti non-fit" - iniuria which is
translated as for the person who is willing to be injured - as a defendant -
the doctor is required to show that the person is knowledgeable about the
risk, the plaintiff respect the nature and level of risk, even though the risk
is freely and voluntarily bearing it. 9

As explained earlier, when the plaintiff (patient) relies

exclusively on the proxy feature, it will have the effect that the
interpretation of medical facts is limited to how the plaintiff (patient)
understands the facts. Defendants (doctors and hospitals) in refuting the
factual assumption - real loquitur - may now provide an explanation,
does not always make sense, causing the court not to be in a position to
decide on real problems as causes or negligence (culpas). For example, if

9
Look SA Strauss, Toestemming tot Benadeling as Verweer in die Strafreg en Deliktereg (1961).

11
 the defendant (doctor and hospital) offers a reasonable explanation, that
the operation was stopped due to equipment failure, this would justify
leaving the wiping device behind. Such an explanation would explain
that the defendant (doctor and hospital) did not act according to their
duties, but would not clean the hospital, because they should have
predicted such an event and must take precautionary measures to prevent
the failure of the equipment. What if the defendant (doctor and hospital)
shows careful attention in counting swabs (gauze) and one of them is still
10
left behind? Will he still be responsible? This study argues that
according to South African criminal law, the court will look at the
situation to resolve causal and negligence questions. Is there a reason or
justification for losing gauze? This will effectively make the use of the
backup device unsuitable. The use of a cellphone receipt is accepted in
the UK, because the design of the defendant (doctor and hospital) can be
called to answer. On the other hand, the plaintiff (patient) has
experienced a misunderstanding in the use of the loquitur, the application
often produces patients who go to court, because medical evidence that is
not enough leaves the court without benchmarks to determine the
obligation worse, that the plaintiff (patient) is not can show a causal
relationship between the actions of the defendant (doctor and hospital)
and injury. In addition to placing the defendant (doctor and hospital) in
the main position to direct the trial, as the defendant (doctor and hospital)
in refuting the doctrine of the resquitur loquitur, only need to offer an
explanation indicating that he was not negligent, for example an
unexpected allergic reaction danger. It doesn't even have to be the most
likely cause of injury as long as it is an explanation that shows no
negligence. Plaintiffs (patients) will not be caught by unexpected

10
Look as examples : Van Wyk v. Lewis, (1924), Holmes v. Board of Hospital Trustees of the City
of London (1977); Anderson v. Moore (1979); Hodson v. East Berkshire AHA (1987); Giesen,
International Medical Malpractice Law (1988), p. 513; Claassen and Vershoor, Medical
Negligence in South Africa (1992), p. 26; Jones, Medical Negligence (1994), p. 95; Harney,
Medical Malpractice (1994), p. 419.

12
 explanations from defendants (doctors and hospitals) that cannot be
tested against acceptable standards of care / service in terms of elements
of the delictive principle. It will not help the state in its truth-seeking
mission. In fact, the only medical evidence before the court is offered in
the defense and the case of the plaintiff (patient) will find failure. 11

The latter is investigated, namely regarding the burden of further

evidence in the hands of the plaintiff (patient) to overcome it, from the
results of Elizabeth Pienaar's Catherine in South Africa that several
12
discrepancies have been found in applying res ipsa loquitur.
Requirements from res ipsa loquitur stating that besides there are ways in
which the accident occurred must be unknown. There must be a high
likelihood of negligent behavior that can be implied from the facts that
are quite well known, the application of the doctrine of res ipsa loquitur
is reflected in Shanti Marina's lawsuit against Dr. Wardhani, Sp. ENT.,
Which was won by Shanti Marina to the level of Cassation of the
Supreme Court of the Republic of Indonesia and compensation was
received. 13

Different from the results of the research conducted by Catherine

Elizabeth Pienaar, who argued in her research, that in medical cases the
requirements for the medical checklist were not met, because from the
adherent's point of view, the plaintiff (patient) would rarely know what
would happen without evidence of medical experts whose results were
not desired. Plaintiffs (patients) in South Africa follow the example in
England, not aware of different legal principles, it will have the effect

11
Catherina Elizabeth Pienaar, 2016, The incommensurability of the archaic perceptions of the
maxim res ipsa loquitur in medical negligence litigation, Doctor of Philosophy in Law, Faculty of
Law at the University of Cape Town in South Africa, p. 49.
12
Catherina Elizabeth Pienaar, Ibid., p. 50.
13
See the Decision of the Cibinong District Court Number: 126 / Pdt. G / 2003 / PN. Cbn, dated
20 July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT. On
August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by the Supreme
Court of the Republic of Indonesia which has permanent legal force (inkracht van gewijsde). See
also Tempo Magazine, Special Edition August 17, 2004.

13
 that the plaintiffs (patients) will "blindly" go to court on unclear and
general grounds of negligent behavior that is. This does not reinforce
criminal cases in which the defendant (doctor and hospital) has no
obligation to refute such cases or if the court allows the doctrine of the
court of residence, that it will place the defendant (doctor and hospital) in
a "superior position" to defend his case with bring up alternative
explanations that are not negligent to avoid responsibility. However, if
direct evidence is not available, negligence can be deduced from the
facts, because there is no court that can eliminate any possibility that
could occur in medical negligence. However, without other facts before
the court completes the full picture of the rescue card, it is certainly clear
that the plaintiff (patient) will not be ready. The facts of a case from
which the transaction is concluded, if it is a reasonable deduction, it may
have the validity of legal evidence that is contrary to the presumption.
Such a conclusion must be clear from the facts, namely losses caused by
the negligence of the defendant (doctor and hospital).

The thesis of Catherine E. Pienaar further states that it is not

possible in medical negligence as a matter of contradiction with legal
reasoning (reasoning by law), medical negligence will be summed up in a
broad sense and in general or unspecified terms. As stated earlier, if all
facts are indeed known, the results of the loquitur are incorrect and the
case must be based on prima facie evidence (dominant facts). One of the
requirements for the referral transaction is that the cause must be
unknown but sufficient with medical information and other facts
available to conclude the occurrence of an unlawful act. 14

From the results of the author's research, it seems clear that in

cases of more complicated medical negligence, despite undesirable
events, general conclusions that are not determined from negligence

14
Catherina Elizabeth Pienaar, Loc. Cit., p. 50.

14
 (liability) cannot be supported by a simple factual assumption in the
application of the rescript system. 15

B. Application of the Doctrine of Res Ipsa Loquitur in Medical

Negligence

In English law there are basic requirements that must be met

before the doctrine of the rescript system can be entered, namely:

a. Events must be natural, so they don't always occur without

negligence.
b. Equipment must be under the control of doctors and hospitals or
medical personnel under the responsibility of doctors and hospitals.
c. The real cause of the accident must be unknown. 16

Accidents must be events that will not occur in the process of

normal events without negligence. The question that must be decided is
whether the accident itself justifies the conclusion of negligence, and in
this case all conditions must be considered based on ordinary experience
and knowledge. The application of the above principle means that the
panel of judges pays attention to general human experience. Patients are
also free to call expert witnesses to test that the accident did not occur
without negligence. In further efforts to avoid situations, where patients
are unable to confirm the evidence needed because the judge is
inexperienced to draw adequate conclusions.
The results of the research conducted by the author show that the
legal considerations used by the panel of judges in deciding on Shanti

15
See Patrick van den Heever & Carstens in the Christmas Administrator case v. Stanley Motor
Ltd, for example it is not known how other vehicles end up on the wrong side of the road. There is
a difference between the absence of facts and insufficient evidence of an accident. Ntsele v. The
MEC for Health Gauteng Provincial Government, 2013, plaintiffs failed to present appropriate
information in supporting their cases and relied on the mistaken belief that the doctrine of res ipsa
loquitur could arrive in a vacuum. See also Barkway v. South Wales Transport Co. Ltd. (1950).
Ogilvie Thompson JA states that where facts are sufficiently known the question ceases to be one,
where facts speak for themselves and the solution can be found by determining whether there are
facts established, negligence must be concluded or not.
16
Patrick van den Heever, 2002, The Application of the Doctrine of Res Ipsa Loquitur to Medical
Negligence Cases; A Comparative Survey, Doctor Legum in Department of Public Law, Faculty of
Law, University of Pretoria in South Africa, p. 91.

15
 Marina's case against Dr. Wardhani, Sp. ENT. and Puri Cinere Hospital
(RSPC) has rejected Dr. Wardhani, Sp. ENT. and the RSPC that
everything that has been done is in accordance with medical procedures.
Usually in this case, the position of the plaintiff (patient) must be weak,
because it is indeed unable to prove the hospital (RSPC) is wrong, which
is why the judge selects the evidence that is difficult to refute, and the
evidence he saw in court. When the trial where Shanti Marina was
present alone, Shanti Marina's voice did indeed sound nasal / bindeng
and not clear when answering the judge's question. It was impossible for
the judge to conclude that in this case, the most appropriate thing to do
was to resell the proxy, all the facts had spoken for themselves. 17
Equipment that causes accidents must be under the control of
doctors and hospitals or other medical personnel for whom the doctor and
hospital must take responsibility. A free contractor used by doctors and
hospitals can have control provided conditions permit, so the doctor and
hospital are responsible for the negligence of the free contractor or
condition, so he must supervise the contractor. 18
There is no need for all the events and conditions surrounding
this accident to be under the control of doctors and hospitals. If
conditions that lead to accidents are under the control of others in
addition to doctors and hospitals, the incident alone is not sufficient
evidence of doctors and hospitals.
If this medical equipment is controlled by a number of employees
from the same employer and the patient cannot find a special employee
who controls it, that principle can still be applied and used to make the
employer accountable. 19

17
See the Decision of the Cibinong District Court Number: 126 / Pdt. G / 2003 / PN. Cbn, dated
20 July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT. On
August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by the Supreme
Court of the Republic of Indonesia which has permanent legal force (inkracht van gewijsde). See
also Tempo Magazine, Special Edition August 17, 2004.
18
See the provisions of Article 1367 of the Civil Code.
19
Patrick van den Heever, Op. Cit., p. 93.

16
 From the results of the research of the author in the case Abuyani
bin Abdul Roni against the Director of General Hospital Dr. Mohammad
Hoesin Palembang showed the action of the defendant (Managing
Director of RSU Dr. Mohammad Hoesin Palembang) who did not tell the
name of the doctor who performed the surgery on the left side of the
plaintiff (Abuyani patient) which ended in blindness, causing the plaintiff
unable to sue the doctor who was suspected of doing medical malpractice
( medical malpractice) and / or medical negligence is a legal action
(onrechtmatigedaad). In addition, the problem is the responsibility of
doctors who perform cataract eye surgeries performed at Dr. RSU.
Mohammad Hoesin Palembang was an internal problem between Dr.
RSU Mohammad Hoesin with the Indonesian Ophthalmologist
20
Association (PERDAMI) which is irrelevant to the plaintiffs.
According to the author, the acting director of RSU Dr. Mohammad
Hoesin Palembang by not telling the name of the doctor who carried out
the plaintiff's left eye surgery that ended with blindness had fulfilled the
elements of the patient's review, namely: (1) facts could not have
happened if the doctor and hospital were not negligent (negligence ); (2)
the fact that it occurs is indeed within the responsibility of doctors and
hospitals; and (3) that fact occurs without the contribution of the patient.
If the cause of the accident is known, this case cannot exist if the
facts speak for themselves, and the patient must confirm that the doctor
and the hospital are negligent due to the cause. A patient who can only
propose a partial explanation of how an accident occurs cannot be
delayed to rely on the resident desk for further conclusions to file a
case.21

20
See the Decision of the Palembang District Court Number: 18 / Pdt. G / 2006 / PN. Plg. dated
July 4, 2006 juncto the Decision of the Palembang High Court Number: 62 / Pdt / 2006 / PT. Plg
April 13, 2007 in conjunction with the Decision of the Supreme Court of the Republic of
Indonesia Number 1752 K / Pdt / 2007 dated February 20, 2008 in conjunction with the Decision
of the Supreme Court of the Republic of Indonesia Number 352 PK / Pdt / 2010 dated November
1, 2010 which has permanent legal force (inkracht van gewijsde )
21
Patrick van den Heever, Op. Cit., p. 93-94.

17
 According to Foster, in relation to the above, it states:

"That the third criterion is also very important and often forgotten. If
there is evidence even if it is small, regarding how the event occurred, the
patient must hang the whole case on the evidence, and the argument can
never help him. "22

From the results of the study the author shows that the case of Dr.
Dewa Ayu Sasiary Prawani et al. as a doctor at Prof. Hospital Dr. R.D.
Kandaow Manado conducts the Cito Sectio Caesaria operation against
victims of Siska Makatey, has fulfilled the elements of the reselsa
loquitur or the facts have spoken for themselves, in this case there is no
explanation as the requirements for the inclusion of res ipsa loquitur
namely the absence of contributions from Siska Makatey patients
regarding cito sectio caesaria surgery process which causes the patient to
die. 23
C. Res Ipsa Loquitur Can Be Applied In Cases Of Medical Negligence
1. The Medical Paradigm and Legal Paradigm Significantly
Different to the Rescript of the Res Ipsa Loquitur

Catherina E. Pienaar's research found that according to South

African law, the remaining gauze (the Van Wyk v. Lewis case) was
only subjective evidence of negligence in the mind that did not know
that a court in South Africa must be presented with sufficient
evidence to balance the actions of the defendant (doctor and
hospital) against globally accepted medical standards determined by
the medical profession itself. This study argues that court refusal in
South Africa against the magical proverb of loquitur in medical law
is defensible. In cases of medical negligence, factual causes, legal

22
Foster, 1996, Res Ipsa Loquitur: The Defendant’s Friend, SJ. 824.
23
See the Manado District Court Decision Number: 90 / Pid.B / 2011 / PN. Mdo dated 22
September 2011 in conjunction with the Decision of the Supreme Court of the Republic of
Indonesia Number: 365 K / Pid / 2012 dated 18 September 2012 juncto Decision of the Supreme
Court of the Republic of Indonesia Number: 79 PK / Pid / 2013 dated 7 February 2014 which has
permanent legal force (inkracht van gewijsde )

18
 causes and negligence can only be determined after medical
principles are explained. The elements of medical offenses are
ignored when the patient is requested to cause the plaintiff (patient)
not adequately prepared in a medical case. 24

Furthermore, this research by E. Pienaar argues that it shows

that the court needs to understand the medical reality to allow prima
facie testing. 25 The legal system determines that defendants (doctors
and hospitals) must comply with the expected standard of care and
determined by general law, society and medical profession. Proof of
the defendant (doctor and hospital) being weighed against the
behavior of doctors and hospitals that makes sense from the same
branch of the profession that does the skills, and caring in following
the standard of care received, the standard of satisfying care is more
than just skills and care. This illustrates safe or standard methods or
practices that must be followed to avoid risks and complications in
medical intervention, court by medical experts in the context of
medical principles. 26

It is noteworthy to find that the legal jurisprudence governing

laws in England and the laws of offense in South Africa have
developed along different lines, clearly visible from general law
which has changed gradually in both countries. The aim of the courts
in the UK to move to a more inquisitive system in 1998 and changes
in the direction of practice would certainly allow courts to participate
in the task of medical fact-finding, even if it still remained dominant
over hostilities in the world of legal paradigms.

24
Catherina E. Pienaar, Op. Cit., p. 257.
25
See the Ratcliffe case v. Plymouth & Torbey Health Authority, 1998, where J. Brook said that in
the simple case res' s loquitur might speak at the end of the layman's evidence, and the judge
would decide the case on conclusions drawn from all the evidence. J. Hobhouse says that
prosecutors (patients) may depend on a number of broad-based parts, namely negligence inference,
but must add some evidence of medical experts to pass prima facie testing.
26
Catherina E. Pienaar, Op. Cit., p. 257.

19
 As it is known that the South African court does not accept
27
applications for reselitur in cases of res ipsa loquitur. This is
different from the courts in Indonesia that have received and utilized
the doctrine of resiting loquitur for the first time in Shanti Marina's
case against Dr. Wardhani, Sp. ENT. And Puri Cinere Cibinong
Hospital based on the Decision of the Cibinong District Court
Number: 126 / Pdt. G / 2003 / PN. Cbn, dated 20 July 2004 juncto
Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT.
On August 18, 2005. At the Cassation Level of Claims, Shanti
Marina was granted by the Supreme Court of the Republic of
Indonesia which has permanent legal force (inkracht van gewijsde).
28
Usually in this case, the position of the plaintiff (patient) must be
weak, because it is indeed unable to prove the hospital (RSPC) is
wrong, which is why the judge selects the evidence that is difficult to
refute, and the evidence he saw himself in court. When the trial
where Shanti Marina was present alone, Shanti Marina's voice did
indeed sound nasal / bindeng and not clear when answering the
judge's question. It was impossible for the judge to conclude that in
this case, the most appropriate thing to do was to resell the regulator,
all the facts had spoken for themselves.

In this study the author argues, in connection with the

application of the doctrine of the resumption of feedback for the first
time in 2004 in the case of Shanti Marina against Dr. Wardhani, Sp.
ENT., And the Cinere Cibinong Puri Hospital are as follows: (1)
courts in Indonesia allow the doctrine of reschedule loitur to prevent
doctors and hospitals who know what has happened to avoid
responsibility just by choosing a doctor and hospital not to provide
27
Catherina E. Pienaar, Ibid., p. 258.
28
See the Decision of the Cibinong District Court Number: 126 / Pdt. G / 2003 / PN. Cbn, dated
20 July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT. On
August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by the Supreme
Court of the Republic of Indonesia which has permanent legal force (inkracht van gewijsde). See
also Tempo Magazine, Special Edition August 17, 2004.

20
 medical evidence; (2) the doctrine of the rescript of the office is only
permissible for claims because of lack of care, skills, and the truth of
the lawsuit can be determined only after considering all the facts; (3)
the court must be placed as close as possible in the position of
doctors and hospitals to test negligent behavior; (4) adequate medical
information is needed by the court to consider all evidence on a
balance of probabilities; and (5) if the court does not have enough
evidence from the facts of injury to put itself in a position to
ascertain whether doctors and hospitals deliver the required medical
service standards, the court can ask doctors and hospitals to
acknowledge the fact of the injury as a cause of action without
medical evidence enough to support this assumption, because the
facts speak for themselves (the things speak for itself).

2. Equality of Doctors, Hospitals and Patients in Health Services

Catherina E. Pienaar's research considers the statement that
the application of the doctrine of the doctor's opinion can balance
imbalances in the relationship of doctors, hospitals and patients
resulting from the fact that patients sometimes or not even know
what is happening under the influence of anesthesia and are therefore
harmed . Furthermore in the study found a relaxation of the South
African court on legal principles, causation and causality in
circumstances where the element of negligence was proven and
related to injuries suffered by plaintiffs (patients) in South Africa.
This shows that the court respects and recognizes the constitutional
rights of a patient to be treated with bodily integrity in a dignified
and fair manner. The South African constitution is the first law of the
state and is the legal basis for the rights and obligations of citizens
(implicit rights and obligations of patients). It also defines the
government's obligation to its citizens, so that the constitution clearly
has relevance to medical law.

21
 It is debatable in all studies, that the magical proverb of
loquitur is rejected, because the magical proverb does not fulfill all
elements of the liability liability. Considering that the general law
that develops on constitution which is limited by the rights of poor
patients, it is clear that res ipsa loquitur is a term that is too simple to
even cover the extent of the element of error. Public policy
considerations have been redefined and no longer support the
"feeling" of general customs, because the expected rights to health
care / services have been limited to rights that meet the requirements
of available resources. Information in this context must be given to
the court, which cannot be excluded from the application of the
magic saying res ipsa loquitur. 29
There is something interesting about the arguments of Van
den Heever and the Carstens that deserve to be considered in this
study. They argue that: (1) the magical proverb of the loquitur must
apply to medical cases, because the plaintiff (patient) is treated
unfairly, if he is deprived of his right to use the magical proverb; (2)
the magical proverb of the real loquitur will help the plaintiff
(patient) who is harmed because he has no medical knowledge about
what happened; (3) the magical proverb for loquitur does not harm
the defendant (doctor and hospital), because it only asks for an
explanation; (4) if the plaintiff (patient) is prohibited from using this
magical saying must be seen as unfair discrimination; and (5) the
magical proverb of the loquitur can be broadly translated into the
highest health standards that can be achieved by referring to
processes and results.
The right to equality is guaranteed in the constitution of
South Africa, where everyone has the right to legal protection and
benefits. Equality includes the full and equal enjoyment of all rights
and freedoms for its people. The South African Court now considers

29
Catherina E. Pienaar, Ibid., p. 272-273.

22
 the broader context of patient rights, and where the danger is caused
by strong groups (doctors and hospitals) in connection with
vulnerable vulnerable groups (patients), the constitutional rights of
both parties must be considered , and the fact that in practice a poor
and uneducated patient rarely has a say in determining the course of
treatment / medical services. By importing other measures such as
reforming South African civil procedures by introducing inquisitorial
elements in court procedures, allowing a greater level of judicial
questions or using a mandatory medical court appraiser can help by
correcting the possibility of imbalances. In a more flexible approach
by South African law, the system deals with rules of cause and effect
due to material inequalities as seen in the Oppelt case v. Head:
Health, Department of Health Provincial Administration: Western
Cape; potentially following the example of a British court in a
Chesters case v. Afshar is the possibility that the patient will be
compensated correctly in the future, if they have suffered a loss. 30
3. Regulatory Policy Res Ipsa Loquitur For Medical Negligence
Cases: "Holy Spell" Patients
From the results of this study, it was revealed that there is a
similarity with the conditions in South Africa regarding the right to
equality of doctors, hospitals and patients in medical services that
have been guaranteed in the South African constitution, where
everyone (cursive from the patient writer) has the right to protection
and benefit (doelmatigheid) rather than legal validity
(rechtmatigheid). Equality includes the full and equal enjoyment of
all rights and freedoms for its people. This is reflected in the study of
Catherine E. Pienaar, which is related to the magical mantra of the
loquitur, that the South African courts have now considered the
broader context of the rights of these patients, as seen in the Oppelt
case v. Head: Health, Department of Health Provincial

30
Catherina E. Pienaar, Ibid., p. 281-282.

23
 Administration: Western Cape; which potentially follows the
example of a British court in a Chesters case v. Afshar is truly well-
compensated patients for their future, if they suffer losses due to
medical negligence as a result of the application of resellers in
connection with material inequalities. 31
For the situation in Indonesia, by being inspired by the thesis
of Catherine E. Pienaar, we are actually waiting for the authority of
the Ministry of Health of the Republic of Indonesia to issue public
policies by applying the principle of Freies Ermessen (freedom of
action on its own initiative) in the form of medical negligence. Ipsa
Loquitur is proven to provide legal protection for patients in court, in
achieving substantive justice.
It is still fresh in our minds, cases of malnutrition and
measles that have claimed the lives of 63 children in Asmat
Regency, Papua. It's really sad to see that the human tragedy is still
repeated. The case of malnourished children in this country is
reported by the media almost every year, even after the reform era.
In the past ten years, cases of malnutrition have not only occurred in
areas that are difficult to reach, such as in Papua, but also in various
regions throughout the archipelago.
As in 2005, cases of hunger in Yahukimo District, Papua,
spread in the media. Even though the government at that time tried to
play down the problem, in fact 55 people died and 112 people were
in poor nutrition, some were children. We know that there are many
remote areas in Indonesia that are difficult to access, even on the
island of Java. In the Pongkor area, Bogor Regency, West Java, for
example, there are still people who have to walk more than one hour

31
See Catherina Elizabeth Pienaar, 2016, The incommensability of the archives of perceptions of
the maxim is a document in the medical negligence litigation, Doctor of Philosophy in Law,
Faculty of Law at the University of Cape Town in South Africa, p. 281-282. See also Prosser in
the topic Law of Torts 346 (1953) commented by Lambert, Comments on Recent Important
Personnel Injury (Tort) Cases, 24 NACCA L.J. 46, 76 (1959): "Courts do not hesitate to use res
ipsa loquitur as an intentional policy instrument even for balance against conspiracy of silence ..."

24
to reach the puskesmas. Especially in Papua, to Lolat village,
Yahukimo, at that time from Wamena people had to walk seven days
up and down the hill. When the weather is good, the new helicopter
can land. Likewise with villages which are now being hit by famine
and measles. From Agats, the capital city of Asmat Regency takes
three hours along the river on a fast boat. However, infrastructure
difficulties should not be the reason for falling victim, because
malnutrition is not a sudden natural disaster. The process of eating
less to poor nutritional status lasts a long time and is actually
predictable. Moreover, every year the government (Ministry of
Health) monitors its condition. The results of the 2016 Nutrition
Status Monitoring show that 17.8 percent of children under five
suffer from malnutrition. Of that amount, 12.1 percent are classified
as short toddlers who can lead to stunting, if there is no intervention.
From monitoring in 34 provinces and 514 districts / cities, there is no
province that is free from acute nutritional problems, with the
biggest problem in the Eastern Indonesia region. Likewise with
immunization coverage. Data from the Ministry of Health states,
basic immunization coverage reached 86.8 percent in 2015-2016.
What we understand, babies and children who escape immunization
have the potential to contract and infect. They are known as missing
outs, so they must be addressed immediately. In this case, the
government (Ministry of Health) actually has a database of
undernourished areas and areas with low immunization coverage.
The question is then, is homework to solve all the problems done?
Not only is malnutrition and measles, in fact the extraordinary
incidence of diphtheria also occurs almost every year. Although it is
true that there has been a division of authority in regional autonomy
including education, health and food. However, it is the duty of the
central government (Ministry of Education and Culture, Ministry of
Health, and Ministry of Agriculture) to monitor, check, and if

25
 necessary sanction regional governments who are ignorant of the
welfare of their people. Want in Asmat, Aceh, Serang, all Indonesian
people have the same rights. 32
But in reality the government does not want to work alone,
but delegates that authority to the community through laws, such as
education, health, food, and others. The tasks that must be carried
out by the government and human prosperity are unlimited, so that
the government's task is dynamic, covers all matters relating to
people's welfare. His enthusiasm was limited to those mentioned in
the constitution. The opening of the 1945 Constitution of the
Republic of Indonesia, it had an impact on the government (Ministry
of Health) which did not encourage maximally in realizing public
health degrees. The impact can be seen from the lack of funding for
health in the 2016 State Revenue and Expenditure Budget which
only reaches around 5 percent. Even if we compare it with other
countries' health funding in Southeast Asia, for example Singapore
14 percent, Thailand 13 percent, and Vietnam 13 percent. To
increase the ideal health budget, it takes 15-20 percent of budget
income and expenditure. 33
Judging from the budget approach, it can be stated that if
only 5 percent is provided for health development in Indonesia, then
this country has not been able to improve its health status. Even
though health status is the main factor for realizing prosperity
(cursive from the author of Welfare State). This condition makes the
government (Ministry of Health) criticized as a party that does not
understand or as if it really does not know, that the health sector is an
investment for human development. 34

32
Kompas Daily Headline, Januari 17th 2018.
33
Look WHO (World Health Organization), 2014, Global Health Expenditure Atlas.
34
Look (2018), Government Duty in Fulfilling Health Status At Welfare State Of Indonesia.
Faculty of Law, University 17 of August 1945 Semarang.

26
 However, it must be questioned and studied, whether the
concept of welfare state (Welfare State) applied has provided a boost
to the government (Ministry of Health) to prioritize the welfare of its
people. This question becomes important when development
priorities are emphasized in infrastructure programs, but the Human
Development Index (HDI) is low. On the basis of this question, then
the answer that can encourage the government (Ministry of Health)
to be able to accelerate health degrees optimally, among others,
needs to be regulated (priority scale) on the following matters: (a)
political budget prioritized for health development; (b) the right of
every citizen to obtain health insurance; (c) the right of every citizen
to obtain optimal health services; and (d) government obligations
(Ministry of Health) to improve public health status.
Using a budget approach study, the level of public health that
has still not been fulfilled is due to the lack of a health budget, which
is only 5 percent, which according to WHO standards should range
between 15-20 percent. Therefore, it is necessary for political
budgets to prioritize development in the health sector, so that
fulfilling the needs of health degrees can be realized. By referring to
the provisions of Article 66 of Law Number 36 of 2009 concerning
Health, the political budget for the health sector is determined as
follows:
(a) the amount of the government health budget is allocated at least
5 percent of the State Budget and Expenditures, not including
salaries;
(b) the amount of the provincial government, district / city health
budget is allocated 10 percent of the income and expenditure
budget, excluding salary; and
(c) the amount of the health budget mentioned above is prioritized
for the benefit of public services at least 2/3 of the State Budget
(APBN) and the Regional Budget (APBD).

27
 The budget policy mentioned above, if it cannot be
maintained anymore because it is not in accordance with needs, even
though the percentage of the health budget must be increased, taking
into account UNESCO standards and comparisons with other
countries that have succeeded in realizing public health degrees.
Meanwhile, there must be an amendment to the health law to meet
public health and also implement the objectives of the welfare state
(Welfare State) . 35
Budget policy that does not focus on handling social
problems and / or basic needs services in remote areas (cases of
malnutrition and measles). The basis of Indonesia's health budget
allocation has always been detrimental to residents in remote areas.
Because the allocation calculation is always based on the population.
Remote areas in Papua are not included in the budget policy budget
that is ideal for decent services for the community. Politics and
budget policies in this country tend to be discriminatory, in the form
of neglect of citizens in remote remote areas. To ensure a touch of
service to the decent and prime community in remote areas, the
count is not just one sector, such as education or health. Remote
areas must be built in an integrated manner (integrated development
for remote areas), so that it requires an adequate budget. The
allocation calculation must be affirmative. 36
In the doctrinal state of the law, loquitur can be applied to
cases of medical negligence in court, the government (Ministry of
Health) actually has to conduct its own investigation without waiting
for amendments to Health Law Number 36 of 2009 concerning
Health by issuing a policy regulation (beleidsregel), whose material

35
Wijaya (2018), Government Duty in Fulfilling Health Status At Welfare State Of Indonesia.
Faculty of Law, University 17 of August 1945 Semarang, p. 4-5.
36
Laode Ida, Bad Portrait of Public Service, Kompas Newspaper, Januari 17th 2018.

28
 accommodates interests patients who have not been protected by law
in the context of the application of the loquitur for medical
negligence cases. If the government (Ministry of Health) does not
immediately start issuing policy regulations, on the basis of social
justice, the moral of health development in this case clearly must be
sued. The state must be reminded that it neglects to protect every
patient who is harmed because of medical negligence, so that some
of the patients have been marginalized at the edge of health
development without the presence of the state. Why not, this case of
medical negligence occurs in a country that has placed the ideals of
social justice as the ultimate goal of the state. This case of medical
negligence shows one thing, that the basis of the country's political
philosophy, namely the realization of social justice for all people,
has been hurt. The state (central and regional governments) neglects
to care for the classes of patients they care for.
The series of events clearly raises the lawsuit question: Are
policies taken by the state, legislative and executive (the
Government and the Ministry of Health), always negligent in
touching the realm of poor patient communities? This fundamental
question is important so that development projects that are always
glorified do not lose their social essence and actually create gaps.
It is time for a policy taken by the state to be formulated to
fill the legal vacuum, as said by Thomas J. Aaron: "... is the power or
authority given by law to act on the basis of judgment or conscience,
and moral ideas rather than law. "37 It is understandable that existing
laws and regulations will not be able to reach everyone's life.
Therefore, the government through state administration officials (the
Ministry of Health) who carry out tasks to realize people's welfare,
are given the authority of policy, namely the authority to regulate

37
Look Thomas J.Aaron, 1964, The Control of Policy Discreation, Charles C. Thomas, Co.,
Springfield.

29
 based on their own initiative (freies ermessen) for the urgent need to
provide services to the public, which has not been regulated in law. 38
In connection with the legal vacuum of the health law, which
has not yet regulated the doctrine of the lawsuit for medical
negligence in providing legal protection for patients, the government
(Ministry of Health) must base its commitment to realize the equal
rights of doctors, hospitals and patients. This policy regulation in
written form is known in the Netherlands as "Pseudowetgeving" or
"Pseudo-legislation". It is referred to as pseudo legislation
considering its form does not resemble a law, because it is indeed not
a law, but has legal powers such as law. Regulatory policy as a form
of use of policy authority has the following characteristics:
(a) policy regulations are not laws;
(b) the principles of limitation and testing of laws and regulations
cannot be enforced in policy rules;
(c) the policy clause cannot be tested "Wetmatigheid", because
there is no basis for the law to enact decisions from policy
regulations;
(d) regulatory policies based on "Freies Ermessen" and the absence
of relevant administrative authority to make regulations in
making regulations;
(e) testing of policy rules is more left to "doelmatigheid", so the
basis of the testing is the principles of good governance; and
(f) in practice, the format is given in various forms and types of
rules, namely: decisions, instructions, circulars, announcements,
etc., not even found in the form of rules. 39 What stands out here
is that the consideration is more focused on " doelmatigheid
"(benefit) rather than" rechtmatigheid "legal validity).

38
Wijaya, Op. Cit., p. 5.
39
Wijaya, Ibid, p. 6.

30
 The policy regulations that will be issued also cannot conflict
with existing laws, namely Law Number 36 of 2009 concerning
Health and Law Number 44 of 2009 concerning Hospitals and Law
Number 36 of 2014 concerning Health Workers, but that is only
complementary. However, it is not impossible that policy regulation
will become the forerunner of legal changes in the future. The use of
authority for the issuance of regulatory policies and responsive legal
perspectives, the formulation must provide space to involve the
public from the planning process to publication. 40 In this case, it also
allows the emergence of authorities who have uncontrolled control
of state administrators in implementing their authority, as opposed
with laws and regulations, abuse of authority and acts of abuse will
not occur. Opportunities will be smaller, because responsive policy
regulations that have quality that meet the principles of transparency,
participation and accountability are the essence of the realization of
good governance. 41

Responding to these conditions in connection with the rules

of policy of the loquitur for medical negligence cases that can be a
"holy mantra" for patients, there is an urgent step that must be taken
by all stakeholders from the Ministry of Health, namely
strengthening the capacity of the government (Ministry of Health),
especially in the service health. Strengthening this capacity must
cover all lines, from the perspective of budgeting, the capacity of
human resources throughout the health bureaucracy apparatus, and
the quality of public health services. 42

40
Look William N. Dunn, 2016, Public Policy Analysis.
41
Wijaya, 2016, Research Report of Law Instrumen in One Door Service Implementation, Faculty
of Law, Universitas 17 of August 1945.
42
See Case Ntsele v. Provincial Government MEC for Health Gauteng, Buthelezi Case v.
Ndaba, Oppelt Case v. Head: Health, Department of Health Provincial Administration:
Western Cape; which potentially follows the example of a British court in a Chesters
case v. Afshar. See also Decision of Decision of South Jakarta District Court Number:
31
 The public service paradigm in the health sector which only
emphasizes the Minimum Service Standards (SPM) must be shifted
to the paradigm of the New Public of Health Service (NPHS) that
puts health public services as the realization of patient rights and the
government's responsibility to fulfill them. The main principle is the
"holy mantra" of the patient (cursive author of the hospital) as the
owner of sovereignty must enjoy his basic rights and the duty of the
government (Ministry of Health) is to ensure its realization
optimally.

1809 / Pdt. G / 2006 / PN. Jak. Cell. dated 30 August 2007 juncto Decision of the Jakarta
High Court Number: 218 / Pdt / 2008 / PT. DKI 27 November 2008 in conjunction with
the Decision of the Supreme Court of the Republic of Indonesia Number: 1563 K / Pdt /
2009 dated 29 December 2009 in conjunction with the Decision of the Supreme Court of
the Republic of Indonesia Number: 515 PK / Pdt / 2011 dated 02 February 2012 which
has permanent legal force (inkracht van gewijsde ) Decision of Cibinong District Court
Number: 126 / Pdt. G / 2003 / PN. Cbn, dated 20 July 2004 juncto Decision of the
Bandung High Court Number: 511 / Pdt / 2004 / PT. On August 18, 2005. At the level of
Cassation of Claims, BC was granted by the Supreme Court of the Republic of Indonesia
which had permanent legal force (inkracht van gewijsde). See Tempo Magazine, Special
Edition August 17, 2004. Decision of Pemalang District Court Number: 04 / Pdt. G / 2012
/ PN. Pml. February 19, 2013 which has permanent legal force (inkracht van gewijsde).
The decision of the Palembang District Court Number: 18 / Pdt. G / 2006 / PN. Plg. dated
July 4, 2006 juncto the Decision of the Palembang High Court Number: 62 / Pdt / 2006 /
PT. Plg April 13, 2007 in conjunction with the Decision of the Supreme Court of the
Republic of Indonesia Number 1752 K / Pdt / 2007 dated February 20, 2008 in
conjunction with the Decision of the Supreme Court of the Republic of Indonesia
Number: 352 PK / Pdt / 2010 dated November 1, 2010 which has permanent legal force
(inkracht van gewijsde ), Decision of Manado District Court Number: 90 / Pid.B / 2011 /
PN. Mdo dated 22 September 2011 in conjunction with the Decision of the Supreme
Court of the Republic of Indonesia Number: 365 K / Pid / 2012 dated 18 September 2012
juncto Decision of the Supreme Court of the Republic of Indonesia Number: 79 PK / Pid /
2013 dated 7 February 2014 which has permanent legal force (inkracht van gewijsde )

32
III. CLOSING
A. Conclusion
1. The doctrine of res ipsa loquitur (the things speak for itself) has
proven to be a standard jurisprudence at the Supreme Court of the
Republic of Indonesia over medical negligence, which is an easy
way of proof for patients, namely by submitting the facts suffered
by him as a result of the care or treatment services of doctors and
hospitals, where the doctrine of the resident office can actually be
applied by judges who examine, hear, and decide on medical
disputes, because patients have found facts that there meet the
following criteria: (a) facts cannot exist / occur if the doctor and
hospital are not negligent; (b) the facts that occur are indeed within
the responsibility of doctors and hospitals; and (c) that fact occurs
without the contribution of the patient.
2. The medical reality will become clear only when the desired
standard of care / service has been submitted to the court using
medical expert evidence that is recognized and analyzed in detail
about the causes and consequences of medical injuries. A precise
and accurate understanding of medical information clarifies the
elements in an illegal act to determine: (1) whether the behavior of
the culpa can be proven; (2) whether there is a real risk that the
application of the doctrine of resident law to medical negligence
cases can lead to a misperception of medical information given by
doctors and hospitals to patients; (3) on the basis of such medical
information the court can draw legal conclusions from negligence
towards mere factual assumptions (whether there are legal cases or
not in cases handled by the court); and (4) if the wrong beliefs are
answered by doctors and hospitals with explanations of medical
negligence not occurring, even unrealistic or not related to
conclusions about facts, patients will lose in this case, with a real

33
 risk that the doctor and hospital explanation is convincing court
party.
3. The Constitutional Court of the Republic of Indonesia continues to
develop public law, in which courts have a central role to develop
public law as well as to promote the values enshrined in the
constitution, such as: (1) everyone has the right to have access to:
(a) care services health including reproductive health care; (b)
adequate food and water; and (c) social security, including if they
cannot support themselves and their dependents, and appropriate
social assistance; (2) the state must take legislative action and other
actions that are responsible, in the available resources, to achieve
progressive realization of each of these rights; and (3) no one might
be refused medical treatment.
B. Suggestion
1. The Ministry of Health of the Republic of Indonesia is obliged to
socialize so that doctors provide sufficient time for patients to
explain everything related to medical information. Doctors need to
improve communication with patients. This can prevent most
medical disputes in court due to communication between doctors
and patients is still a problem in medical practice, given the number
of patient complaints related to communication with doctors ranks
third after the standard of medical services and competence.
2. The Ministry of Health of the Republic of Indonesia is obliged to
socialize so that the fixed procedures for professional standard
examinations that must be decided through the Medical Ethics
Honor Council (MKEK) are not in line and contrary to the
Constitutional Court's decision Number: 49 / PUU-X / 2012, dated
May 28, 2013, intends to abolish or eliminate all forms of
protection or protection of members of the profession in carrying
out their duties, because: (a) That the protection of the profession is
very contradictory and injures the principle of law upheld in the

34
 Indonesian Law, namely the principle of Equality Before The Law
law; (b) That MKEK cannot be used as a professional organization
authorized to determine guilt or not a doctor in carrying out his
profession; and (c) The existence (existence) of MKEK can only be
used to assist law enforcement officials by presenting as an expert
witness in uncovering criminal acts that occur in the medical field.
3. The Ministry of Health of the Republic of Indonesia in issuing
public policy in the health sector can implement Freies Ermessen
(freedom to act on its own initiative) which was realized through
the establishment of the Ministry of Health Republic of Indonesia
in an effort to achieve substantive justice for medical negligence by
applying res loquitur to provide legal protection for patients in
Indonesia.

35
 BIBLIOGRAPHY

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2
______, 2018, Government Duty in Fulfilling Health Status At Welfare State Of
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COURT RULING
Decision of Cibinong District Court Number: 126 / Pdt. G / 2003 / PN. Cbn, dated 20
July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT.
On August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by
the Supreme Court of the Republic of Indonesia which has permanent legal force
(inkracht van gewijsde).
Decision of the South Jakarta District Court Number: 1809 / Pdt. G / 2006 / PN. Jak.
Cell. dated 30 August 2007 juncto Decision of the Jakarta High Court Number: 218 /
Pdt / 2008 / PT. DKI 27 November 2008 in conjunction with the Decision of the
Supreme Court of the Republic of Indonesia Number: 1563 K / Pdt / 2009 dated 29
December 2009 in conjunction with the Decision of the Supreme Court of the
Republic of Indonesia Number: 515 PK / Pdt / 2011 dated 02 February 2012 which
has permanent legal force (inkracht van gewijsde )
Decision of Pemalang District Court Number: 04 / Pdt. G / 2012 / PN. Pml. February
19, 2013 which has permanent legal force (inkracht van gewijsde).
Decision of Cibinong District Court Number: 126 / Pdt. G / 2003 / PN. Cbn, dated 20
July 2004 juncto Decision of the Bandung High Court Number: 511 / Pdt / 2004 / PT.
On August 18, 2005. At the Cassation Level of Claims, Shanti Marina was granted by
the Supreme Court of the Republic of Indonesia which has permanent legal force
(inkracht van gewijsde).
Manado District Court Decision Number: 90 / Pid.B / 2011 / PN. Mdo dated 22
September 2011 in conjunction with the Decision of the Supreme Court of the
Republic of Indonesia Number: 365 K / Pid / 2012 dated 18 September 2012 in
conjunction with the Decision of the Supreme Court of the Republic of Indonesia
Number: 79 PK / Pid / 2013 dated 7 February 2014 which has permanent legal force
(inkracht van gewijsde )

3
LEGISLATION
The Association of Laws and Regulations of the Republic of Indonesia According to
the Engelbrecht System, Jakarta: PT. New initiative van Hoeve, 2007.
R. Subekti and R. Tjitrosudibio, Civil Code, 26th Printing, Jakarta: PT. Pradnya
Paramita, 1994.
Law of the Republic of Indonesia Number: 23 of 1992 concerning Health (State
Gazette of the Republic of Indonesia of 1992 Number 100. Additional State Gazette
of the Republic of Indonesia Number 3495).
Law of the Republic of Indonesia Number: 29 of 2004 concerning Medical Practice
(State Gazette of the Republic of Indonesia of 2004 Number 116. Additional State
Gazette of the Republic of Indonesia Number 4431).
Law of the Republic of Indonesia Number: 36 of 2009 concerning Health (State
Gazette of the Republic of Indonesia of 2009 Number 144. Additional State Gazette
of the Republic of Indonesia Number 5063).
Law of the Republic of Indonesia Number: 44 of 2009 concerning Hospitals (State
Gazette of the Republic of Indonesia of 2009 Number 153. Additional State Gazette
of the Republic of Indonesia Number 5072).
Law of the Republic of Indonesia Number: 36 of 2014 concerning Health Workers
(State Gazette of the Republic of Indonesia of 2014 Number 298. Additional State
Gazette of the Republic of Indonesia Number 5607).

DICTIONARY

The Oxford Illustrated Dictionary, 2nd Revised Edition, Great Britain : Oxford
University Press, 1975.

Kamus Besar Bahasa Indonesia, Edisi 3, Departemen Pendidikan Nasional Republik

Indonesia, Jakarta : Balai Pustaka, 2001.