Private hospital liability uunder the current health care system private

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International Journal of Law ISSN: 2455-2194 Impact Factor: RJIF 5.12 www.lawjournals.org Volume 3; Issue 5; September 2017; Page No. 101-106

Private hospital liability uunder the current health care system private hospital liability 1

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Wempi Potale, 2 Wulanmas APG Frederik, 3 AJ Lonan, 4 Ronny A Maramis Ph. D. Student, Since Law Programme, Faculty of Law Science, Sam Ratulangi University, Manado, North Sulawesi, Indonesia 2, 3, 4 Departments of Law, Postgraduate Programme, Faculty of Law Sam Ratulangi University, Manado, Indonesia

Abstract A new change in hospital liability as the BPJS becomes a major part of the national health care system. BPJS (board of national social security) is now has significant role in the health care system in Indonesia. As according to the law every citizen must be under health care insurance program and the program under the auspices of BPJS. Over billion rupiah are been invest to this national health insurance program each year by the Indonesian government and every citizen in Indonesia is coverage by this program with only very small low insurance fee per month. This national health insurance program is now become very prestigious program under the new government. Follow to this program, actually Indonesia now is developing a new model of health care system what so called manage care. Some experience in several western country such as United States shown that manage care that is quality and cost control policy basis has its legal effect mainly because the structur of legal relationship among and between the BPJS and the patient (BPJS Participants) and the BPJS and the Hospital/Doctors in other party. There is no legal existence in between hospital and the patient since the patients are under limited choices. They should go to the BPJS hospital/doctor, follow the referral system. Since this structure is new in the liability system thus the theoretical approach in law must be reconciled. This study is conducted to one major private hospital in the capital city of North Sulawesi. Legal method is one of preferred method to explore the existence of the legal relationship among and between BPJS and the hospital and BPJS and the patient in other part with legal content analysis technics. The relations between doctor and patient are under individual contract after one accreditation procedures. Another legal document that are using is the Act of Health No. 36 Year 2009 the Act No. 24 Year 2011 about National Social Security Program, the Act of Hospital No. 36 Year 2009 and the Act No. 29 Year 2004 about Medical professional. The conclusion of this study show that liability in this new scheme of relationship especially under the national health insurance run by the BPJS has brought much legal risk to the hospital. The hospitals are now face double risk they are dealing with conventional liability where every hospital must liable every service that they provided but now that may have another risk to be sued by the BPJS’s patient as well. Keywords: health insurance, liability, hospital, BPJS Introduction As the main problem of the research in this study is to explore the legal liability of the hospital side as the institution that should be responsible for any acts that happen behind the wall due to the public does not have any accessibility and capability about the nature of the medical treatment. Liability comes to question and become more complicated, even among the legal professional, since the complexity of the nature, positions, and functions in the hospital. Take for consideration that in one hospital there some department with different duty and responsibility such as management staff, medical staff, and also now nurses is legally to be considered to be profession. Another group of professionals that must take into account also other profession that relates whch is medical technicians which been recognized as profession with in particular certification. Another importance group is the board that represented the owner of the hospital. In some government hospital that it goes to the minister of health and or private hospital that goes to the founders or share-holder in private corporate. This research is to study the legal liability of one private hospital. This may also focus to break-down the system of law

that encompasses private hospital into several issues such as; hospital itself, group of medical profession, nurses, legal document that relates to foundation (Foundation Act), corporate act and the two main law excluded contract law, the civil act especially the vicarious liability law rule, tort and the negligence one. Under the Indonesian law, legal matter in the hospital or medical law may be induces some criminal accusation such as negligence and battery. Therefore the legal issues of this study is how the one private hospital could be challenge with legal liability based on its nature of the acts of the hospital staff and what can be done with the national health insurance board (BPJS) a board that as entity to be responsible for the BPJS patient? BPJS is stand for Board of National Social Insurance. Research Method This study carries qualitative approach or for legal study it uses legal qualitative interpretation as a tool to bring the legal factual as one legal phenomenon. One may considers that legal research as purely legal research that based on set of rule or regulation or acts. However, legal research is a set research conduct that focuses on legal structure as what the law has laid 101

International Journal of Law

and said about one particular matter and its implementation, effect and what the next policy should be rule out. Legal theory and theoretical approach Liability in general is about of being responsible about general matters and specifically is a render one duty. Theoretically, researcher make some differentiation between responsibility and the liability one. As been mention above that in general responsibility is a general matter and liability is legal matter. Other writers such as; Sudiarto in his dissertation which was cited from, Goldie writes that the term responsibility refers to one duty to fulfilled one duty. However, liability is refers to the consequences of one negligence or failure to meet certain conduct. Moreover, Sudiarto adopts two difference thoughts such as from Martono and Peter Machmud Marzuki, the first one emphasizes that liability is legal responsibility with no other explanation. The other scholar Machmud adopted that liability is legal responsibility because of its legal nature as a consequences for failure to do something and may cause damage to other. Some between 3those two there are no specific challenge on this term except Marzuki that emphasizes the nature of one position compare to the other one. Personally I would prefer to look to another law system as common law tradition which is develop so much this term with many practical matters. One act or more that creates tort according to J.H. Nieuwenhuis is a liable to render compensation because the damage that he or she causes. Then, in this context the writer provide a thought wich is the same as Peter Machmud Marzuki opinion,1 More specific Nieuwenhuis, adopted liability is a duty to bear for compensation that incur from the damage that he causes by breaking the norm. Those violations according to Nieuwenhuis may happen because of tort or breach of contract. Nieuwenhuis, moreover describes that liability is based on two causes namely violation of law and gross negligence. As been long recognized in civil law system that anyone who creates damage is liable to as long as such damage is the norm violation2. Sudiarto takes another direction by saying that liability is existed if: a. Culpa causes damage to another as been formulated in article 1365 (civil code) this type of liability is known as liability based on fault and to its development later becomes liability on fault. b. Act or one party to be disclaimed liability not because of his fault but because of the law. So, the law refers to one act as against the law. This type liability is liability based on risk. Nieuwenhuis offers risk liability as what been formulates in the article 1367 verse (3) on Civil Code that indicates one culpa act. However, according to this articles one must bear responsibility for damage that he causes and should render compensation even without fault.3 According to the civil Sudiarto (disertasi) dalam “Tanggung Gugat Hukum Pengangkut” membedakan pendapat keduanya. 2 J.H. Nieuwenhuis, Hoofdtukken Verbintennissenrecht, terjemahan, Universitas Airlangga, Surabaya, 1985, hlm 135. 3 Sudiarto (disertasi) dalam “Tanggung Gugat Hukum Pengangkut” yang membedakan pendapat keduanya. 1

procedure act the implementation of article 1365 and 1367 (3) a party which been damaged by someone that should fill law suit for its own and proclaim his damage in the court. In the cross examination process plaintiff will have some disturbances due to the accessibility of the information for his pleading. Burden of proof that bore on the plaintiff makes the plaintiff must show the court all clues and facts that usually its hard to have. Liability on risk may be happen not only on the articles 1367 (3) but also could be prolong to the third party which actually are not related to the agreement itself. By meant with the liability on risk is damage which suffer from other party that is not in the agreement. The actor that cause the damages is not in the relation with damage party. In other word strict liability principle is a liability without fault but it violates the norm like breach of contract therefore the other endure damage. Absolute Liability or Strict Liability The concept of absolute liability is actually the oldest liability concept compares to the two liability theory mention before. Absolute liability consider as the deviation from the concept of liability which the element of culpa that incur damage is no use. Absolute liability no oblige other party without proofing the element of culpa. Once the damage is in there so the actor thar cause has to responsible for. Therefore, the concept of liability is no need for fill law suit to have the compensation in the court as it must in the liability due to fault and presumption of quilt. My position actually disagreed with this similarity in strict liability and absolute liability because on those two concept there are some basic differentiation. As mention before although on Strict liability compensation may could be render without court session but in many instances the defendant always try to avoid the payment. Different from the absolute liability where defendant is not able to avoid or not to give the compensation in any basic. The function of liability as a tool to compensation Liability may not loose from the contractual because its nature that the liability is basis for. Agreement or contract is an agreement among party where each party bind themselves to do or not to do with some duty (contra prestasie). Agreement or contract is the will of each party which manifest in willing to something that is not prohibit by the law. As been practice many time that in one agreement or contract always stated about both pasty duty and responsibility and where both party romise to each other in case one party may not able to render his duty and it will bring some damage to other party. So, the right is a benefit of one party and in other way around responsibility to do something is a duty and a must that should be delivered to another. Right and duty in the same time are emerge although they are not the same in character. In essence law cannot give any beneficent to one party without give any burden to the party as beneficent to another party. In other word law cannot create certain rights to others without giving him a duty because the aim of the law is welfare and that must be done through the distribution of duty and rights. Parties that make a promise certainly expect what they are 102

International Journal of Law

willing will be done as what they agree to do each other. In the case the contract cannot be implemented fully because of one party fault which may cause from negligence or an intentional and it brought some damages to certain party and there is a clear evident that such negligence or an intentional has brought some damages, causality, the party that created such broken must responsible for. Nieuwenhuis adopt some term such “break the norm” and that act according to him is a tortious one. And that rule break must be recover. Bentham make some different compensation. A compensation in cash, or to provide the same item that was lost, or contra witnesses to recovery the paint that some have suffered from false testimony, to recovery someone honor, to revenge as what he suffer from, or compensation by third party that usually act as personal guarantor. Based on Bentham kinds of compensation thus particular kind of compensation must be given to whom that aircraft survival from accident in cash or have been decided before or by the court. Because the essence of the law of evidence is major part of the civil procedure act and civil law itself. The law of proofing becomes more complicated because it is depended on the ability to reconstruct the real fact in present cross examination process. Analysis Liability based on Act and Institutional hospital setting Institutional Liability Hospital as an institution is a legal entity which is meant should liable for something under its supervision. As a social institution it is also may have social responsibility to provide better service from day to day along with very basic accountability moral and ethics through its service of care. Author will back to the point of hospital liability. First should be comprehend that hospital liability may be found with in this regulation, such; 1. Civil Code of the Indonesian law especially in the rule of vicarious one. In case of negligence per se, as a result of one negligence act the hospital have to be responsible for under the doctrine vicarious liability. 2. Act Number 44 Year 2009 Hospital Act article 46 states that the hospital has to responsible for all damages that as result of one error or negligence act who works for hospital. This article also adopt the vicarious liability rule. 3. Professional liability is a liability that as result from professional negligence or misconduct who works in the hospital under the hospital setting. 4. And also even this may be debated about its liability for insurance program, but the hospital may could be found negligence if the standard of care is not provide. The New Twist in the hospital liability as the National Social Insurance is in place (BPJS) Hospital Law The existence of health act is consider relatively new and its development. Before we discuss more we look back to the previous expert that start to think about the health law in Indonesia, such as Fred Ameln, Hermien Koeswadji even their approach is not comprehensive one but the study that they performed have made difference between the health law, medical medical and the forensics one.

In this context thus in the essence for law enforcement and protection to health care provider and the patients itself it is become awarness that we need the more comprehensive and dinamic health law. There is a lot of change on moving about the right of the patient in the health care process in line with the advance technology also about the right of the health care provider itself. Hospital law may could be describe as all rule and regulation as related to hospital providing services. This may include the regulation relates to all staff, implementaton of the technology, organizational structure, rights and duties, organizational standard and procedure, professional code of conduct. In other word all rule that relates to every body who work in the hospital. Moreover, if see to the connection of legal relation between the patient and the hospital so we could categorize two kind of agreement. First is the agreement of care where there is mutual understanding and assent between hospital and patient where, inherently, the hospital provide roomcare, medical staff, nurses and treatment with standard of utilities. Second is the medical agreement between the hospital and the patient that its medical staff will take the best effort to heal the patient (inspanning verbintennis) (Ameln, 1991:75-76). Addition to this is the hospital will provide legal needs for the medical staff and other health staff. In response to the hospital responsibility, where the main and dominant principle is the hospital is liable for all act that render in the hospital will be found on the article 1367 (3) on Civil Code provided. Besides this the hospital liable for the unmet and tortious act that occur in the hospital as been found in the article (1243, 1370, 1371, dan 1365 KUHPerdata) (Fred Ameln, 1991: 71) [4]. There are three difference function one hospital may have which is quality control, beneficiary and law. (Hermien Hadiati Koeswadji, 2002: 118) [5]. Hospital and the National Board of Social Insurance One legal entity, (doctors, health center and the hospital) may accept national insurance patient (BPJS patients). Those legal entity must have been accredited by the national board of social insurance (NBSI-BPJS), means those all legal entity have been found meet the national standard. They work for the NBSI-BPJS not the patient that’s for sure from legal standing. They been binding by the contract with the National Board of Social Insurance (BPJS) work and deliver the service hospital, the doctors according to the scheme that provide by the NBSIBPJS. The NBSI patient have to pay monthly fee as according the classification and follow the procedure visit, doctors, health center and the hospital. Under this structure so the formation is the main legal structure is between the NBSIBPJS and the Patient thus Doctors, Health Center and Hospital work for the NBSI-BPJS to treat NBSI-BPJS patient. Agreement between doctors, health center or hospital are considered as the subsidiary contract not the primary contract. This legal formation bring a new challenge in the hospital 4

Ameln, Fred, Kapita Selekta Hukum Kedokteran, Jakarta: PT. Grafikatama Jaya. 1991,hlm.47. 5 Hermien Hadiati Koeswadji,Hukum untuk perumahsakitan, Bandung: Citra Aditya Bakti, 2002,hlm.118.

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liability under the national board of social insurance patient. Hospital legal document Hospital bylaw & Medical bylaws The term of hospital bylaws composed of two words ‘hospital’ dan ‘bylaws’. The word ‘hospital’ may be found familiar to some of us means hospital. Another word ‘bylaws’. Some definitions are providing by the experts; The Oxford Illustrated Dictionary: Bylaw is regulation made by local authority or corporation. Pengertian lainnya, Bylaws means a set of laws or rules formally adopted internally by a faculty, organization, or specified group of persons to govern internal functions or practices within that group, facility, or organization (Guwandi, 2004). The existence of this document is importance as a legal tool to manage the act of the people who works in the hospital describing what should or should not done. Thus the hospital bylaws is the ‘rules of the game’ of the hospital staff. There are two type of hospital bylaws, first tailor-made that means every hospital may have different style, content and structure according to the type of the hospital. The second is the prolong arm means that the hospital bylaws a vehicle of the law of tool of the law to regulates in more detail in consistency with the law in general. This will help the law to recognize the very specific act and fact that are in the medical and hospital setting that usually are not to be found in the general act. Thus the hospital bylaws is the legal documents contents with very specific rule and regulation about one act or another in the hospital setting [6]. Some forms of the HBL could be found as collection of hospital regulation and administration rule, standar operating procedure (SOP), Director Decree letter, Promulgation and Announcement, MOU that so for and as been call as hospital internal rule. The hospital internal rule could not be found contradict to the its higher regulation such the act of No. 32 Tahun 2001 about Health Care. And other government regulation and ministerial regulation. Recently there a lot of complaint coming to about the health care service in the hospital. Some hospitals face some legal suit because of its standard of care. All this just because of the internal side of the hospital get lack attention from the management department. Thus the hospital bylaws get more importance and major role to regulates all things in the hospitals. Thus the hospital bylaws is in the interest of the hospital for: quality maintenance, intrument for accreditation, and part of the hospital risk management.7 8 This document may also content about the agreement among the medical staff about procedure and the term of medical malpractice or medical error or maltreatment. The legal Challenge for the hospital: Staff Privileges & Antitrust This topic pretendly using english just because its nature. Staff

priveleges is an authority of one doctor or physician to practice in the hospital. In Indonesia we usually said as ”doctor poly” (doctor who work in the clinic) which means doctor that work in the hospital clinics that may have some right to refer the patient to the hospital for continue care or referral. There are two kinds of physician that work in thospital. First is non host physician means that the physician work by schedule hours just for small hours or visit. Host doctors means doctors that work for permanent in the hospital. Staff privileges usually comes with host doctors that has special right which is clinical privileges authority. Medical committee which a very powerful committee is members of senior or highly specialist doctors that have authority to review a new coming doctors, their privileges until their position as doctors in the hospital. So this committee, again is very powerful committee. One process that must foollow by one doctors before practice in the hospital in credentialing process. A process that is involving member of medical committee to review one doctor’s application based on professional standard, code of ethics and capability, medical malpractice record if there is, and the latest the development shows the economic credential of one particular doctors. Once one doctors to be admitted in the hospital she or he may work as host doctors in there. The committee also has power to perform quality assessment of particular doctor based on hospital direction. Any rule related to credentialing, and privileges are in the form of medical bylaws. Another trending legal issues in the hospital setting that comes forward along credentialing issues is an anti trust, anti competitive agreement, and conspiracy.” This discussion in the common law system is under the domein of unfair competition which is related to the Sherman Act law in the United states. Conclusion Hospital have much burden by law or by social responsibility. Both according to hospital Act No. 42 Year 2009 and Act No. 36 Year 2009 about Health Care, hospital is in the center of legal issues. The fact is any responsibility that could not be burden to anybody, anyone must go the hospital as institutional. So what make it difference in the government hospital and private hospital in the law. Government hospital perform all the government program and in somehow have some social exceptional. Private hospital especially have face a new challenge beside their pre-existence responsibility but under with new national board of social insurance program that they have to serve BPJS patient the private hospital and in some case, accordingly, may not be liable but in many case to be consider as the only institutional hospital that must be liable for. In this new era of hospitalized culture legal means become more importance. Hospital bylaws, medical bylaws are two documents that is a must in the hospital that’s from practice view of point is considers to be ignores.

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Tambun, Jerry, Hukum Kesehatan, Kedokteran dan Rumah Sakit, (2016) Pacific Institute ISBN 978-602-19035-5-1.hlm. 246. 7 Ib. 8 Lihat., pendapat Jerry G. Tambun dalam bukunya Hukum Kesehatan, Kedokteran dan Rumah Sakit, tentang hospital bylaws dan clinical, medical previleges and Anti Trust, Pacific Institute ISBN 978-602-19035-5-1 (2016),hlm.78.

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Private hospital liability uunder the current health care system private

International Journal of Law ISSN: 2455-2194 Impact Factor: RJIF 5.12 www.lawjournals.org Volume 3; Issue 5; September 2017; Page No. 101-106 Private...

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