THE PRINCIPLES OF LIABILITY ON TELEMEDICINE PRACTICES

THE PRINCIPLES OF LIABILITY ON TELEMEDICINE PRACTICES

Arman Anwar

Extended

The main objective of this research is to find a proper legal principle of liability on the law of telemedicine. To achieve this objective, the statute, conceptual, comparative and case approaches are used as tools of the research. Some legal materials, such as Burgerlijk Wetboek (BW), Government Gazette No. 23 of 1847, Law No. 36 Year 2009 on Health, and Law No. 29 of 2004 regarding Medical Practice in conjunction with Regulation of the Minister of Health of the Republic of Indonesia Number 2052/Menkes/PER/X/2011 on the License of Medical Practice, and Law No. 44 Year 2009 on Hospitals is used as the factoring point of the research, and also the law of telemedicine implemented by several other countries is used as the legal comparison to review such principles of the present laws and to propose the future telemedicine law.

As the fact that the law of telemedicine still does not exist in Indonesia, it might be some problems for Judges to decide cases related to liability of risk on the practice of telemedicine. Pursuant to Article 24 paragraph (1) of the 1945 Constitution and Article 5 (1) of Law Number 48 of 2009 on Judicial Authority, to decide a case that appears to him, the judge should explore and understand the legal values, as well as the social justice. Thus, the application of paragraph 3 of Article 1367 BW and Article 46 of Law Number 44 of 2009 on Hospital, should be in the context of proportional justice, where the needs of the patients for the safety of medical services meets the professional liability of the telemedicine practitioners.

The theory of this dissertation is structured by the relationship among code of ethics, professional standards, service standards and standard operating procedures that regulates the telemedicine practitioners which his or her actions are authorized by the delegation of power of the primary care physician (PCP). dissertation means the balanced distribution of rights and obligations of the professionals linked to a telemedicine practices, where the proportion liability to each party's is based on equity, appropriate, reasonable and fair valuation. In line with the previous concept, the liability should be based on the viewpoint of interactive justice, which means based on the values ​​of professional expertise, austerity, responsibility, and collegiality. This concept is dedicated to the desire to do good for the sake of healing a patient (doing good).

Keywords: Liability, Medical Practice, Telemedicine

1. PRELIMINARY
   1. Background of the problem

Technology plays a vital role in human life. Nearly every nation, no matter where it is located, utilizes technology in their daily lives. It's also thanks to technology that one nation can connect with another through a unified lifestyle. This acceleration, in various aspects, has transformed what was once a distant life into a unified one. The implications of this unified life are known as globalization.[2] The mastery of science and technology (iptek) across all sectors is increasingly widespread, and globalization has contributed to its increasingly complex impact across all fields, including health science and technology, such as telemedicine. The advancement of telemedicine health technology is inextricably linked to the domino effect of the rapid development of information technology. Schumpeter He emphasized that the influence of the information technology industry has reached the health sector and other sectors. This is because the information technology industry has a different character and market than the contemporary economy. He predicted that innovation in science and information technology would build a new economy (new economy) which will drive economic growth. [4]

World Health Association (WHO) defines telemedicine as:

"The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities" [6]

In view David Storey D, specifically in the United States, there are at least five legal issues that require regulation before launching a telemedicine program. These five legal issues are: license from the country and credentialing from doctors, liability in medical malpractice, FDA Regulations (US Food and Drug Administration) from the State, security of patient health information data, and insurance issues. Formulation of the problem

          Based on the description of the background of the problem above, the problem that will be studied and also become  legal issues The principle of risk liability for telemedicine practitioners (Hospitals, specialist doctors, sub-specialists and PCP doctors)primary care physician) and other health workers) proportionally in telemedicine practice

1. Research methods

The type and specifications of the research refer to the opinion Peter Mahmud Marzuki Legal research is a process of discovering legal rules, legal principles, and legal doctrines to address the legal issues at hand. This is in accordance with the prescriptive nature of legal science.[10]

1. CHARACTERISTICS OF TELEMEDICINE IN MEDICAL PRACTICE
   1. “International” Characteristics of Telemedicine Practice

The service trade model is called cross-border mode of supply namely a method of providing services across territorial boundaries where the service provider and service recipient are in their respective countries, but the service exceeds/crosses national territorial boundaries.Develop long-term strategic plans to develop services e-health in various health sectors, both for health administration, legal and regulatory frameworks, infrastructure and public and private partnership mechanisms.

1. Developing ICT infrastructure for e-health
2. Building collaborations with the private sector and for-profit organizations to support  e-health
3. Develop e-health which can reach the community, especially those vulnerable to health problems (vulnerable) and according to their needs,
4. Mobilizing cross-sector collaboration in adopting e-health norms and standards, evaluation, principles cost-effectiveness Dalam e-health to ensure quality, ethics and security while prioritizing confidentiality, privacy, equity and equality.
5. Develop center of excellence and networking e-health,
6. Developing a public health information system model for surveillance, response and emergency.

The formulation of the WHO resolution, as mentioned above, demonstrates the significant responsibility each government must carry out in its efforts to develop the nation's health. The government is responsible for planning, organizing, organizing, fostering, and supervising the provision of health services. e-health by preparing everything necessary for health administration, legal and regulatory framework, infrastructure and mechanisms, the WHO Resolution requires the government to develop... e-Health provide benefits to marginalized communities, especially those vulnerable to health problems (vulnerable) and according to their needs,

Regarding the liberalization of the health services sector in ASEAN, it is regulated in the ASEAN agreement. Framework Agreement on services (AFAS). One of the three things agreed upon is to facilitate the free flow of services through mutual recognition of competencies (mutual recognition arrangements/MRA). Meanwhile, the possibility of foreign doctors practicing across ASEAN countries is still under discussion, and it is not expected that ASEAN will reach an agreement on this matter anytime soon.[13]  Elias Mossialos, Sarah Thomson and Annemarie Ter Linden said that to facilitate cross-border certification services, it must be done through mutual recognition of certification services from each country, provided that the requirements are met. Directives and has been accredited, by an institution recognized by the European Union, or recognized under bilateral agreements between the European Union and third countries or international organizations.Telemedicine Practice in Indonesia

The tendency of some patients in Indonesia to utilize the sophistication of cross-country telemedicine technology has caused several large hospitals such as Gading Pluit Hospital, Sahid Hospital, and JEC Hospital, as well as RSCM, to implement telemedicine which is implemented in the form of seminars and operations (online surgery).[16] and Dr. Soetomo Regional General Hospital.conducted in the form of teleradiology, [18]

KIndonesia's commitment to increasing access to global health knowledge and telemedicine services, It could be said that Indonesia is late in preparing regulatory regulations regarding telemedicine. Unlike Malaysia, India, or the United States, Indonesia has only regulated telematics in general through Law Number 11 of 2008 concerning Electronic Information and Transactions. Meanwhile, the specific regulation regarding telemedicine is limited to the Decree of the Director General of Health Efforts Development, Ministry of Health of the Republic of Indonesia, Number: HK.02.03/V/0209/2013 dated January 31, 2013, concerning the Implementation of Telemedicine. Pilot Projects Telemedicine and Designation of Telemedicine Health Service Facilities in the Fields of Teleradiology and Telecardiology.

1. THE NATURE OF LEGAL RELATIONSHIPS IN TELEMEDICINE MEDICAL PRACTICE
   1. Regulation of Telemedicine Medical Practice in Medical Law

Based on the decree of the Director General of Health Efforts Development, Ministry of Health of the Republic of Indonesia Number: HK.02.03/V/0209/2013 dated January 31, 2013 concerning the Implementation Pilot Projects Telemedicine and Appointment of Telemedicine Health Service Facilities in the Field of Teleradiology and Telecardiology. then 2 (two) supporting health service facilities are determined, namely for the field of telemedicine, the supporting health service facility (fasyankes), the supporting health service facility is RSUPN dr. Cipto Mangunkusumo Jakarta and for the field of telecardiology, the supporting health service facility is Harapan Kita Heart and Blood Vessel Hospital Jakarta. While the supporting health service facilities consist of 18 (eighteen) health facilities in the form of Field Hospitals, Main Clinics of the Ministry of Health, Ambulances, and Community Health Centers, as well as Regional Public Hospitals spread across several underdeveloped, border and island areas (DTPK).  

By studying the decree above, the form of telemedicine medical practice that is used as a pilot project is in the form of store and forward (asynchronous telemedicineis). The hospital that acts as a dedicated location, where non-clinical specialist doctors are located, is the designated hospital. Meanwhile, the hospital or healthcare facility that is being supported is the hospital or service facility that acts as the presentation site, where clinical doctors and patients are located. The use of the terms "supporter" and "supportee" can be interpreted as meaning that this collaboration contains the intention of providing protection, security, and guidance from the supporter to the supportee. Therefore, there is an implied sense of responsibility from the supporter to the supportee.

This decree serves solely as a letter of appointment from the Ministry of Health of the Republic of Indonesia to hospitals and healthcare facilities deemed to have established telemedicine systems and technology devices and a robust internet network. The collaboration stipulated in this decree covers only the provision of expert services and consultations in radiology and cardiovascular emergencies (particularly acute coronary syndromes). Therefore, the mechanisms and techniques for electronic transmission of radiographic images and all radiological modalities, as well as ECG recordings, are regulated, referred to as teleradiology and telecardiology. Fees for diagnostic services, medical consultations for conventional plain X-rays, CT scans, MRIs, and ECGs are stipulated in the decree.

Given that this decree is merely a designation of a health care facility, it naturally places more emphasis on regulating the technical aspects of the service than on regulating the legal relationship. Therefore, in accordance with the seventh dictum of the decree, it states that the regulation of the legal relationship between the parties in the implementation Pilot Projects Telemedicine will be further outlined in a separate cooperation agreement between the provider and provider health care facilities, with the approval of the Director General of Health Care Development at the Indonesian Ministry of Health. However, the cooperation agreement is currently still in the drafting process.drafting).

1. Legal Relationship of the Parties in Telemedicine Medical Practice
2. Telemedicine Medical Practice in the Form of Real Time (Synchronous  Telemedicine)

Legal relationships in telemedicine practice can be distinguished based on timing, the time at which information is transmitted, or the interaction between the individuals involved. Therefore, telemedicine practice can be divided into two types: real time (synchronous Telemedicine) and store-and-forward (asynchronous Telemedicine).[20] During the consultation, the designated person at the presentation site identifies the site as the presentation site, then identifies the patient and provides the specialist with the name and telephone number of the referring physician. Likewise, the presentation site will provide information to the primary care physician/pcp who referred the patient the name and number of the specialist, and the fax number to answer specific questions primary care physician/pcp, which you may want to ask. The next step is for the designated person at the presentation location to present the patient and their medical data. The patient will be connected online. on line using video consultation facilities (simultaneously) live, guided by a primary nurse, or PCP (physician)primary care physician) A telemedicine consultation allows simultaneous consultation with a specialist to discuss the patient's medical condition with the specialist. The specialist uses video conferencing to evaluate and implement the treatment plan recommended by the telemedicine specialist. After the telemedicine consultation is complete, the telemedicine specialist sends the recommendation to the referring physician through a presentation website or directly to the specialist. The referring physician is responsible for the patient's care and is responsible for implementing the recommended treatment plan, including ordering any tests and prescriptions. The referring physician can contact the specialist directly for further discussion or clarification of the recommendation.

1. Telemedicine Medical Practice in the Form of Store and Forward (Asynchronous telemedicinee)

The thing that distinguishes this form from real time (synchronous Telemedicine is the use of software by a clinical physician at a presentation site to store and encrypt patient medical images and data. This data is then secured and transmitted electronically to a non-clinical specialist physician at a dedicated location for consultation, review, and evaluation. offline. Therefore, this type of telemedicine is non-interactive because it does not require the presence of both parties (patient, presenter and specialist) at the same time. Dermatologists, radiologists and pathologists are specialists who usually use asynchronous this telemedicine.

The implementation stages of this type of telemedicine practice include collecting the necessary medical data (e.g., clinical information and patient medical records) by completing a demographic form and including the referring site information, the PCP's name, and patient information, including their medical history and any other specific questions they wish to ask the specialist. The information is then forwarded to the specialist care provider via encrypted email from the referral site to the desired specialist. Before the patient's medical data is sent/transmitted to the specialist (non-clinical doctor) for medical image interpretation, it is important to note that transmission errors must not occur during this process, as this can result in the loss of patient medical image information and/or the image becoming unclear for interpretation. Therefore, the telemedicine system and medical instruments must first be working properly. After the medical image has been interpreted by the specialist, the specialist will then send/transfer the interpreted medical image back to the PCP, along with an explanation. Therefore, the time for sending the medical image and other medical information and the time for reading or interpretation by the specialist does not coincide. 

1. PROPORTIONAL RISK LIABILITY IN TELEMEDICINE MEDICAL PRACTICE
2. Risk Liability in Medical Law Aspects

In essence, the principle of liability is based on respect for patient rights, namely the right to receive advocacy and protection in resolving medical disputes so that they can obtain compensation or damages due to medical malpractice. Regulations in health law regarding patients' rights to sue doctors are regulated by law, namely Law Number 36 of 2009 concerning Health, Law Number 29 of 2004 concerning Medical Practice, and Law Number 44 of 2009 concerning Hospitals. As well as Law Number 36 of 2014 concerning Health Workers.

Article 58 Paragraph (1) of Law Number 36 of 2009 concerning Health states that every person has the right to demand compensation from a health worker and/or health provider who causes losses due to errors or negligence in the health services they receive. In the case of losses incurred by a Hospital or losses caused by negligence committed by a health worker, there is liability. Corporate based on Articles 32 and 46 of the Law Number 44 of 2009 Concerning Hospitals. Article 32 point q. States that, Every patient has the right to sue and/or demand a Hospital if the Hospital is suspected of providing services that do not meet standards, either civilly or criminally. Meanwhile, Article 46 determines that the Hospital is legally responsible for all losses caused by negligence committed by health workers in the Hospital. Therefore, doctors who make personal mistakes or Hospitals that commit malpractice are burdened with the risk of liability to pay compensation to patients who have suffered losses. In the case of the delegation of medical actions from medical personnel to health workers, according to Article 65 paragraph (3) point c of Law Number 36 of 2014 concerning health workers, it is stated that the person giving the delegation remains responsible for the actions delegated as long as the implementation of the actions is in accordance with the delegation given.

JH Niuwenhuis, divide the liability into 3 (three) groups, namely: [22]

1. There is a relationship between subordinates and superiors. The determining factor here is the authority to give orders (instructions) to others. This authority can arise from an employment contract, but it can also arise from public law (the relationship between the ruler and civil servant).
2. Such liability depends on the circumstance that the unlawful act was committed in the performance of a subordinate's duties. The court's limitation requires a connection between the unlawful act and the subordinate's duties. An employer remains liable for unlawful acts committed by a subordinate while performing their duties, even if the employer expressly forbade the act or even if the act occurred outside of working hours.
3. For liability under Article 1367 paragraph (3), there must be an unlawful act and a mistake on the part of the subordinate.
4. Liability does not depend on a violation of norms or fault by the employer. The injured party simply relies on evidence of the subordinate's unlawful act, the existence of a superior-subordinate relationship, and the fact that the subordinate's duties created the opportunity for the unlawful act.

The case of the baby being swapped can be used as an example of risk liability in the medical field specifically related to Article 1367 paragraph (3) of the Civil Code.Doctrinal Controversy Vicarious Liability in the Risk Liability of Doctors and Hospitals

Through legal fiction the actions of the servant are the actions of the master (master), then doctor vicarious liability, let the master answer  or by another name responder superior It has become commonly used by judges to hold employers liable for their employees' mistakes. This doctrine is also applied in therapeutic relationships between doctors and patients to resolve patient lawsuits for malpractice by doctors, nurses, or hospitals.[25] Another case, Crown v. Provost (1963). [27]

Likewise with the opinion W. Page Keeton who considers that most courts only hide behind the phrase "he who carries out an act through another person is deemed to have carried out the act himself, as in his statement that:

“Most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases', such as 'he who does a thing through another does it on his shelf,' or the endlessly repeated formula of 'respondeat superior', which in itself means nothing more than 'look to the man higher up.”[29] Frederic Cunningham[31]and JW Neyers,Principle of Proportional Risk Liability

1. Reasoning Based on Legal Considerations

Reasoning based on legal considerations, often referred to as legal reasoning, is a crucial part of legal science. This concept determines how the law is applied in practical legal steps. The term legal reasoning in English is called legal reasoning which means legal argumentation, namely reasoning about the law. According to B. Arief Sidharta, legal reasoning Legal reasoning is the problematic thinking activity of legal subjects (humans) as individual and social beings within their cultural context. However, legal reasoning does not seek solutions in limitless, open spaces. Legal reasoning is required to ensure the stability and predictability of its decisions by referring to the positive legal system. Based on this perspective, citing Heide, B. Arief Sidharta calls the type of argumentation in legal reasoning "systematic problematic thinking" (gesystematiserd probleemdenken).

Menurut Bahder Johan NasutionThe medical and dental professions are functional groups that operate professionally, but administratively, they are hospital employees. They are paid by the government or the hospital owner for their professional expertise. Based on this employment relationship, the actions of medical staff are legally the responsibility of the hospital.[34]  The principle of proportionality or what is known as the term "equitability contract" (borrowing the term Peter Mahmud Marzuki) must be elemental Justice and fairness. Meaning "equitability” shows a relationship that is equal (equality), impartial and fair (fair), meaning that the contractual relationship basically takes place proportionally and fairly. By referring to the principle aequitas praestasionis, namely the principle that requires a guarantee of balance and teachings justum pretium, namely legal propriety. It cannot be denied that equality between the parties never exists. On the contrary, the parties are in unequal circumstances when entering into a contract. However, this inequality may not be exploited by the dominant party to inadequately impose its will on the other party. It is in such situations that the principle of proportionality comes into play. equitability.Demonstrate a shared commitment (as the intention of the parties) driven by a sincere desire for professional cooperation to create harmonious industrial relations in the health sector so that efficiency is realized in the national health services industry.

1. The special nature of the employment contract must contain special rules and values, especially the most important one is that "specialist doctors or hospitals as employers must promise to treat their employees fairly" and conversely "primary doctors or nurses promise as employees to represent the interests of specialist doctors or hospitals as a duty (duty) from the employer which must be carried out carefully and with full caution, and work in good faith and with full professionalism"
2. Employers fully understand that as entrepreneurs, there are consequences to taking risks, both profit and loss, and therefore, they stand between them. Meanwhile, employees, being in between, have the consequence of gaining profits from their work, while also carrying the risk of loss associated with it. 
3. That in order to produce beneficial cooperation, and to demonstrate fairness within the contract, as well as harmony in the employer-employee or agency relationship, the promise of compensation must be explicitly or implicitly included as an important clause in the employment contract.
4. The provisions of the indemnity clause must be able to explain the characteristics of risk liability based on the doctrine vicarious liability while still fully respecting the principle of freedom of contract
5. That any exclusion clause regarding compensation for losses will be very likely to be considered as a limitation of the ability to provide compensation as a whole for situations assessed based on the position and wealth of each party and according to the circumstances (vide Article 1371 BW). On the other hand, justifying the provision of unreasonable compensation will be a very unreasonable burden. reasonable for the perpetrator
6. Conceptual and definitional aspects of doctrinal risk liability vicarious liability must be reduced from the essence of the principle of trust in superior-subordinate or agency relationships. There is no accountability vicarious liability comprehensive if there is an abuse of trust. The principle of trust in individual relationships between employers, employees, and third parties that is created because of interests and trust is the basis of accountability that should not be abused or misplaced. 
7. The fundamental essence of the nature and effect of a breach of contract is whether or not there was a will to “take reasonable measures to prevent the loss or cause the consequences.” On the other hand, “there is no promise to compensate for losses caused by willful negligence, done recklessly or in bad faith or so negligent as to result in fatal loss and/or due to repeated carelessness.”
8. Failure to supervise employees is not a reason for compensation but rather the objective rationality is more about failure to take responsibility for the implementation of one's own contract personally.
9. Important conditions (strong condition) which is created from the existence of "cause" and "condition" (cause and condition) as the one that becomes proximate cause can be used to determine risk liability for losses. However, what is more important is the nature of the risk and the cause of the intervention (intervening cause).
10. Courts must implement exceptional conditions to the application of doctrinal risk liability. vicarious liability when:

This principle of proportional risk liability does not intend to eliminate the doctrine of vicarious liability through contractual terms. However, on the contrary, it must be seen as an implementation in the contractual concept of subrogation and compensation for certain relationships between employers, employees and injured victims.

4. 2. Reasoning Based on Philosophical Considerations

The philosophical aspect is an aspect that is based on truth and justice. Benjamin C. Zipursky divides the theory of justice into two parts, namely the theory of distributive justice and the theory of corrective justice. Distributive justice essentially examines the static aspects of justice, particularly the state, while corrective justice examines the dynamic aspects of justice. Meanwhile, according to Julian Lamont and Christi Favor, the theory of distributive justice is essentially a concept of justice that demands that the proportionality of individual or community rights is guaranteed to be in accordance with their proportions and that no one is harmed by another.[37] This doctrine can even be extended to the deliberate acts of subordinates as long as they are carried out in the course of their work, regardless of whether the employer has detected the wrongdoing or has taken steps to prevent the occurrence of greater harm.[39]

Although it may sound counterintuitive, according to the positivist school of thought, legal decisions can be logically deduced from pre-existing regulations without the need to refer to social goals, virtue, or morality, no matter how unjust or limited the existing statutes may be. Law is a statutory command, and from there, legal certainty can be upheld.[41]  

Legal justice (legal justice) in the positivist approach, justice is based on law and legislation. This means that judges decide cases solely on the basis of positive law and statutory regulations. In upholding this justice, judges or courts merely enforce the law. Judges do not need to seek legal sources outside of written law and judges are seen as applying the law only to concrete, rational cases; in other words, judges act as mouthpieces for the law.       

The Indonesian legal system does not view the law that way. Legal justice (legal justice) does not have to be based solely on laws because in certain conditions it could actually lead to injustice for society, because the written laws that are created have limited validity where at some point this validity will die along with changes in the values ​​of justice in society. Based on such conditions, moral justice (moral justice) and social justice (social justice) is applied by Indonesian judges with an obligation for them to explore the legal values ​​that exist in society. (vide Article 5 paragraph (1) of Law Number 48 of 2009) as an implementation of the constitutional mandate of Article 24 paragraph 1 of the 1945 Constitution which states that judicial power is an independent power to administer justice in order to uphold law and justice. Satjipto Rahardjo is of the opinion that there is morality in law. This can be seen from the existence of legal principles which are not only a requirement for the existence of a legal system but are also a classification of legal systems which contain a certain morality.[43]  Risk liability that previously applied the doctrine vicarious liability purely, now starting to be applied in strict and limited cases.

4. Reasoning Based on Sociological Considerations

As written Roscoe Pound, legal expert Jellinek states, if a legal order must apply in an action, then its social and psychological usefulness must be guaranteed. Roscoe Pound seeing the phenomenon that the rules created by the courts and laws, both continue to fail due to the lack of psychological social security as stated. Jellinek The.[45]    

          The criticisms from the legal experts above show that social psychology determines the quality of law, including court decisions, to ensure legal effectiveness through public support. This reality demonstrates that the world is constantly changing, and the paradigm of pure legal science, which rejects sociology and other disciplines, is becoming increasingly irrelevant. Law is indeed created by and for society, so it cannot stand alone without sociological factors. In the West itself, inevitable changes are also taking place. This classical Western legalistic paradigm has been transformed in the United States since the 1950s during its judicial reform era. Supreme Court Justices Holmes, Cordozo, Llewellyn, Frank, Gray, and others were pioneers in this paradigm. social justice at that time.[47] The liability to pay compensation for an employee's unlawful actions, which was previously considered fair if paid by the employer, is starting to change because it is not always considered fair. In everyday practice, we are increasingly seeing the behavior of employers and employees who require proportional liability in contracts (written or unwritten) that are reflected in the employment relationship between them.

1. Telemedicine Practitioners' Liabilities under Interactive Justice (Interactive Justice) as the Principle of Proportional Risk Liability.

To determine the form of liability in telemedicine practice proportionally for hospitals, specialist doctors, sub-specialists and primary care physicians/PCPs (primary care physician), including nurse practitioners or physician assistants who act as primary caregivers for patients (in this case referred to as telemedicine practitioners), a theory is needed that can determine the extent of the liability of telemedicine practitioners in cases where they commit unlawful acts that harm patients. Considering that this is related to the obligation to be accountable for compensation, the author believes that it is very relevant to the theory. interactive justice.

Menurut Richard Wright, that theory interactive justice is a theory of legal responsibility (legal responsibility) to every interactive action between humans as a legal consequence, because there is equal respect for external freedom (right to equal external) every person. As the author quotes the following opinion:

"It is generally assumed that the basic purpose of law is or should be the implementation of justice: the creation and maintenance of those conditions that are properly specified bay law for the flourishing and fulfillment of each person in the community as a free and equal rational being. This flourishing depends upon the promotion of each person's equal freedom, which has an internal aspect and an external aspect. with the morally proper ands. The external aspect, which is the proper concern of justice and law, is one's practical exercise of one's freedom in the external world, which must be consistent with the equal external freedom of every other person. [49] Richard Wright seeing that the existence of compensation plays an important role in interactive justice to protect everyone from 'harmful interaction' which is generally applied in unlawful acts (tort law) and contract law and civil law in general. In essence, Richard Wright is of the opinion that legal responsibility in criminal and civil law is the same, namely to impose sanctions on parties who commit 'harmful interaction'. In civil law it is termed 'private wrongs' who violates the contract and property a person while in criminal law 'public wrongs' the form is towards dignity (dignity), social norms and public order (public peace and order).Responsibility before an incident occurs and

1. Responsibility after an incident occurs

Responsibility before the incident (ex-ante liability) is the responsibility to comply with all laws and/or regulations in order to provide something appropriate to the public (example: safety regulation, trade-worthiness standards/merchantability standards, service standards/quality of service, and the application of good governance principles to the implementation of a profession). Meanwhile, regarding legal responsibility after the incident (ex post liability) is the obligation to restore the condition of the injured party to its original state.

Risk liability is the opposite of fault liability. In fault liability, a strong causal relationship is sought, while in risk liability, the central focus is on mitigating losses by raising the standard of care, except for unforeseen risks. Therefore, medical professional standards and the standards for the implementation system of a hospital that practices telemedicine need to be well-developed, with efforts to prevent potential errors and minimize risks.risk management) or potential risks, ensuring safe and high-quality public health services is necessary. Legal accountability must be a primary concern for telemedicine practitioners.

V. CLOSING

1. Conclusion
   1. The characteristics of telemedicine in medical practice have created a convergence of telematics law and health law. The collaboration of these two disciplines has resulted in telemedicine practice integrating with the principles of information and communication technology science and innovative medical science. This development has brought about changes that have given rise to new values ​​in therapeutic relationships, enabling them to be established without the patient and specialist meeting. This has legal consequences for physicians' liability for medical malpractice resulting from the delegation of authority based on the principles of delegation or mandate. 
   2. The legal relationship in telemedicine practice is a working relationship based on a contractual relationship or statute. Delegation of medical procedures can be carried out by a specialist doctor as the granting authority to a primary doctor as the receiving authority. Likewise, in the context of the working relationship between hospitals and healthcare workers, the principle of risk accountability applies. (risico aanspraklijkheid) based on the doctrinen vicarious liability. The legal basis is Article 1367 paragraph (3) of the Civil Code and Article 46 of Law No. 44 of 2009 concerning Hospitals. In practice, this gives rise to controversy and injustice. Therefore, in its application, judges are obliged to explore the values ​​of justice and law that exist in society (vide Article 5 paragraph (1) of Law No. 48 of 2009).
   3. The principle of proportional risk liability in telemedicine practice refers to the professional liability between telemedicine practitioners. Its theoretical legitimacy is based on the professional relationship (professional relationship) in the delegation of medical procedures that are guided by the code of ethics, professional standards, service standards, and standard operational procedures. So that the consequences of liability are not simply based on the primary doctor's error (primary care doctor/ PCP) or primary nurse as a subordinate as intended by the doctrine vicarious liability. The nomenclature “proportional” in risk liability means the distribution of the rights and obligations of professionals according to the proportion of each party's fault based on the values ​​of equality (equitability), suitability and appropriateness (fair and reasonableness). Its accountability is based on the perspective of interactive justice. (interactive justice) which is based on the values ​​of professional expertise, caution or precision, responsibility, and collegiality as well as the desire to do good for the sake of the patient's recovery (doing good).
2. Saran
3. It is necessary to standardize electronic telemedicine system technology and national telemedicine education. Furthermore, it is necessary to develop standard operational procedures, practice standards, and competency standards for healthcare workers, including the capabilities of telemedicine practitioners in the field. forensic information technology/FIT (computer forensics).
4. It is necessary to create a comprehensive work contract, especially one that regulates proportional risk liability as a form of good governance for telemedicine practice. Judges should have knowledge of the medical practice in question and be sensitive to absorbing the values ​​and sense of justice that exist in society in implementing Article 1367 paragraph (3) of the Civil Code and Article 46 of Law Number 44 of 2009 concerning Hospitals.
5. Legislative policies are needed as a form of state responsibility. (legal paternalism)  to regulate, protect and provide fulfillment of citizens' rights regarding the legal implications of medicolegal telemedicine. The regulations are intended specifically to provide legal certainty regarding legal liability and compliance. (legal compliance)) telemedicine practitioners and/or hospitals as organizers of electronic telemedicine systems by adopting the best implementation principles (best practices and good practice) and legal examination (legal audit), as well as general principles of international telemedicine practice (general principles).

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