Rethinking the Burden of Proof in Medical Malpractice Cases in Indonesia: A Case for Reversal

Source abstract

<em>Medical malpractice cases present distinctive evidentiary challenges because prosecutors may lack the specialized medical knowledge necessary to establish professional negligence, while crucial evidence, including medical records and information concerning clinical procedures, is largely controlled by healthcare providers. These circumstances create an evidentiary asymmetry that may impede effective access to justice for patients. This study examines whether and under what conditions the burden of proof may be shifted in criminal medical malpractice proceedings in Indonesia. It employs doctrinal legal research using statutory and conceptual approaches, focusing on Indonesia’s criminal procedure and health law frameworks. The study finds that a complete reversal requiring physicians to prove their innocence would raise concerns regarding the presumption of innocence. Nevertheless, a limited shift of the evidential burden may be justified where the prosecution establishes prima facie circumstances indicating gross medical negligence and the relevant evidence lies predominantly within the physician’s or healthcare provider’s control. In such circumstances, physicians may be required to demonstrate that medical interventions complied with applicable professional standards and procedures, while the ultimate burden of establishing criminal guilt remains with the prosecution. The study therefore proposes a limited and proportionate evidentiary-shifting model for gross medical negligence rather than a general reversal of the burden of proof in all medical malpractice cases</em>