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Prudential Principle in Professional Indemnity Insurance of Nurses

Zahry Vandawati Chumaidaa, Fiska Silvia Raden Rorob, Trisadini Prasastinah Usantic
a
Universitas Airlangga
b
Universitas Airlangga
c
Universitas Airlangga

Abstract
Nurses are currently professionals who are seen as equal partners with doctors. The authority of
nurses in carrying out professional duties is regulated in Permenkes Number 148/2010 thus
nurses have legitimacy in carrying out their professional practice. Every job has a very big risk,
taking the profession of a health worker, namely a nurse. The authority and duties applied by
nurses also have a heavy burden so that they need to be protected by insurance. The importance
of professional liability insurance or professional indemnity insurance, for nurses in protecting
an unwanted risk. The purpose of liability insurance is to protect professionals against legal
liability to pay damages to persons who have suffered financial losses arising from their own
professional negligence. Importance of shifting the responsibility of nurses to hospitals through
nursing profession responsibility insurance based on the principle of vicarious liability. In this
case the hospital acts as the insured and the insurance company as the insurer. The hospital is
obliged to pay the premium amount to the insurance company. However, the responsibility of the
nursing profession will not be affected by the principles of prudent insurance that must be carried
out in carrying out health services. This type of research is normative research with a legal
approach and a conceptual approach.

Keywords: Insurance, professional liability, nurses.

Introduction
Article 28H of the 1945 Constitution of the Republic of Indonesia states that "Everyone
who has the right to live in physical and spiritual prosperity, to have a place to live, and to have a
good and healthy living environment and has the right to receive health services. health".
Likewise, it is emphasized in Law Number 36 of 2009 concerning Health that everyone has the
right to health. Especially in the conditions of the Covid-19 Pandemic since the beginning of
2020 that hit Indonesia and will continue until 2021 where those affected by Covid-19 really
need health services from health workers.
Covid-19 pandemic condition requires health service facilities and extra workers to provide
treatment for Covid-19 patients, which is now a top priority. One of the health workers who are
at the forefront in handling Covid-19 patients are nurses, in addition to doctors. The nursing
profession is a professional profession that is an integral part of health services, in hospitals other
than doctors. The nursing profession is currently regulated in Law Number 38 of 2014
concerning Nursing. In Article 3 it is clearly stated that the regulation of 1000 aims to:
A. Improving the quality of nurses
B. Improving the service quality
C. Providing protection and law to nurses and clients
D. Improving of public health status
The position of a nurse in a hospital is as a health worker/employee who serves every
patient in the hospital. Nurses have a relationship with the hospital by having a binding law with
an agreement agreed by the hospital as an employer with nurses as workers (health workers at
the hospital). This work agreement then gives birth to rights and obligations for the parties who
create it, because as has been regulated in Article 1338 BW which states that: "All agreements
made legally as law for those who make them". Each party has the rights and obligations that
have been agreed upon through the employment agreement.
As professional nurses, nurses are responsible for the work they do. The work carried out
by nurses has possible risks that can harm patients as consumers of health services provided by
hospitals through medical personnel (Asmadi, 2005). Nurses as health workers are vulnerable to
receiving compensation from the patient for medical actions that are either independent or
medical actions that are instructions from doctors. As a professional you have an obligation to
the patient to perform a level of expertise that is expected of someone in the profession. Nurses
do not have to be of the highest level of expertise, but must be able to demonstrate an ordinary
standard of expertise in the profession. This has happened in several cases such as the famous
case of Bolam vs. Frieden Hospital Management Committee (Epstein, 2018) in 1957 and Bolitho
vs. City and Hackney Health Authority in 1997 (Keown, 1998). The hospital as an employer as
well as having an interest in the health services it provides to patients is obliged to provide
protection to every health worker who carries out his work (health services) for his benefit. For
this reason, it is necessary to ask questions about insuring nurses against claims for
compensation with liability insurance for the nursing profession.
The hospital acts as the insured and the insurance company as the insurer. The hospital is
obliged to pay insurance premiums as the insurer and the insurance company to cover the burden
of responsibility or work risk of nurses as workers for the benefit of the hospital as the insured.
the liability insurance of the nursing profession, although for insurance risk from the choice of
consumers who are disadvantaged for health services, it does not eliminate the prudence of
nurses in carrying out services.
Research Methods
This research was legal research using a statute approach which included Burgerlijk
Wetboek, Insurance Act, Nursing Act, Health Act, Hospital Act, and its implementing
regulations. A conceptual approach was also used, in this study to analyze the concept of nursing
professional responsibility insurance and the precautionary principle. The legal materials used
including primary legal materials and secondary legal materials. All legal materials that have
been collected were then analyzed in order to obtain answers to the problems in this research.

Results
Prudential Principles in Transferring Risk in Professional Liability Insurance
Property in carrying out its profession cannot be separated from making mistakes, whether
they are done or not. The explanation relates to many things according to each person's
profession, the profession itself is a job that requires training and mastery of a special
knowledge. A profession usually has a professional association, a code of ethics, and a
certification and licensing process that is specific to that profession. Examples of professions are
doctors, nurses, lawyers, notaries, prosecutors, judges, accountants, architects, and others
(Jauhari, 2019). Insurance is an effort that can be used to overcome the possibility of losses due
to uncertain events. insurance agreement the possibility of the risk of events causing losses that
threaten the interests of the insured (hospital) can be transferred to the insurance company. As an
imbalance, the insured pays an agreed premium. With the existence of insurance, the hospital as
the insured who has an interest feels safe from the threat of loss due to a lawsuit from the patient.
The hospital as the insured has a certain interest in business activities (providing health
services) to the community as users of hospital services. The interest in question is responsibility
for the actions of health workers (nurses) who make medical and collective mistakes and cause
harm to patients. Interest is one of the principles of an insurance agreement, that in an insurance
agreement there must be any interest that does not have to appear at the beginning of the
insurance agreement, but that interest must exist when an uncertain event occurs.
The transfer of nurses' responsibilities to hospitals through this insurance can be realized as
a form of legal protection for nurses in carrying out their profession to provide health services to
patients. Legal protection for nurses in carrying out the tasks that have been regulated in Article
36 of Law Number 38 of 2014 which explains that nurses in carrying out their duties have the
right to:
A. Obtaining legal protection carrying out duties in accordance with service standards,
professional standards, standard operating procedures, and provisions of laws and regulations.
B. Obtaining true, clear, and honest information from the client or his family.
C. Receiving payment for services rendered.
D. Refusing the client's wishes that are contrary to the code of ethics, service standards, standard
operating procedures and provisions of laws and regulations.
e. Obtaining standard work facilities
Nurses in carrying out their duties have the right to obtain legal protection for everything
from the recipient of health services as long as the health services provided by nurses are carried
out in accordance with health service standards, operational standards, standard procedures and
do not conflict with applicable laws and regulations.
A nurse who takes action in a hospital has limitations in acting or providing help, this is
because the nurse in taking action must be on orders from a doctor. However, in reality, the
patient may blame the nurse in terms of providing help, administering medication and so on.
Therefore, justice is the basis for nurses and patients to work together without blaming medical
personnel, in this case nurses (Jayanti, 2020).
If the nurse at the time of carrying out her duties turns out to be negligent which causes the
patient to suffer injury or suffer losses, resulting in a lawsuit from the patient's family, the
hospital is responsible for the negligence. it can be legalized. The hospital's responsibility for the
negligence of health workers, especially nurses, is reinforced by the provisions of Article 46 of
Law Number 44 of 2009 concerning Hospitals which confirms that: "The hospital is legally
responsible for all losses caused by negligence committed by health workers. in the hospital".
The term liability is a newly developed term to hold someone accountable for their negligence
causing harm to other parties. In the field of health services, the issue of liability occurs as a
result of the legal relationship between medical personnel (doctors, midwives, nurses) and
service users (patients) as stipulated in the agreement. Liability can be interpreted as a form of
nurse participation in making a decision and learning with that decision the consequences.
Nurses have accountability, meaning that if there are parties who sue, the nurse must be ready
and brave to face it, especially those related to professional activities. Nurses must be able to
explain the activities or actions they perform.
Professional liability insurance is insurance that protects against claims arising from losses
resulting from actions related to one's profession. Therefore, from the obligations he bears, it
makes a person to be careful in taking actions related to his profession. Professional liability
insurance is also an insurance product that provides coverage for losses resulting from running a
profession, for example in this case paramedics are legally responsible for paying compensation
for losses arising from bodily injury caused by the guarantee environment during the validity
period of the policy.
The purpose of professional liability insurance is to protect professionals against legal
liability to pay damages to persons who have suffered financial losses arising from the
negligence of their own professionals or their employees in conducting a business. Therefore, in
carrying out this noble task, nurses certainly have a great responsibility for their duties to serve
sick patients. So nurses in carrying out their duties must be very careful, not to make mistakes or
negligence in serving patients. Due to carelessness in acting which results in the patient's life
being threatened, it can result in nurses being subject to lawsuits.
The term "prudence" in the dictionary of Indonesian means to pay close attention.
Understanding "such caution contains the mandate that in the context of State management,
every State apparatus in registering land must carry out their duties and functions in a
responsible and serious manner for the benefit of the State and society based on the applicable
laws and regulations. So that it can be implied that the principle of prudence can be interpreted as
a basis for truth which is the basis of thinking and acting with great care so that nothing will
happen in the future (Bross, 2020).
The precautionary principle is the basis for all actions, both in business transactions, in
the land sector as stated above and in health services. When referring to business transactions,
the precautionary principle becomes the main basis in the banking sector as emphasized in
Article 2 of the Banking Law that "Indonesian banking in conducting its business is based on
economic democracy by using the precautionary principle". So important is the precautionary
principle in banking activities as an effort to maintain the trust of bank customers, as stated by
Bisdan Sigalingging that (Sigalingging, 2019):
The prudential principle confirms to the bank to have responsibility for its customers. This
is important for banks in order to maintain good and sustainable relationships with customers.
Provision of information is carried out by banks in trust relationships. If the customer is harmed
once, then forever the customer does not trust the bank concerned. The concept of the
relationship between the bank and the customer is not merely a debtor-creditor relationship, but
as a trust relationship.
Likewise in Article 3 of the Electronic Transaction Information Law, that the Utilization of
Information Technology and Electronic Transactions is carried out based on the principles of
legal certainty, benefit, prudence, good faith, and freedom to choose technology or be technology
neutral. The principle of prudence is one of the foundations for parties to pay attention to
because it has the potential to bring harm to both themselves and other parties in the use of
Information Technology and Electronic Transactions. When related to the field of health
services, the precautionary principle is the foundation that must be considered by health workers
in carrying out their duties because it has the potential to cause harm to both themselves and
other parties in health services.
The embodiment of the precautionary principle for nurses as health workers is contained in
several articles in the Health Act and Nursing Act, as follows:
1. That Health workers must have minimum qualifications
2. In health services, health workers must perform according to their field of expertise.
3. Health workers must have a permit from the government.
4. Health workers must comply with the provisions of the code of ethics, professional standards,
rights of users of health services, service standards, and standard operating procedures.
5. Improving the quality of health workers through education and/or training.
6. Health workers are required to develop and improve their knowledge and skills in order to
provide quality services in accordance with the development of new science and technology.
Especially for nurses who carry out nursing practices, they are required to have a Nurse
Registration Certificate (STRP) given by the nursing council after fulfilling the requirements,
namely:
a. Have a higher education diploma in Nursing;
b. Have a Certificate of Competence or a Professional Certificate;
c. Have a certificate of physical and mental health;
d. Have a statement letter that has taken the oath/professional promise; and
e. Make a statement complying with and implementing the provisions of professional ethics.
Besides that, as a manifestation of the precautionary principle, the STRP is only valid for 5
years and can be re-registered every 5 years. Nurses who practice nursing are required to have a
permit granted in the form of a Nurse Practice License (SIPP). Granting a permit from the
Regency/Municipal Government on the recommendation of the competent Health official in the
Regency/City where the nurse is practicing. The granting of a permit is a manifestation of the
precautionary principle in minimizing legal risks, especially for nurses and as a means of
supervision and guidance carried out by the Government, Provincial Governments, Regency/City
Regional Governments, and nursing councils for nurses. This is done in order to provide
protection for the community receiving health services and also in order to improve the quality
of health services provided by nurses.
With regard to professional liability insurance, the hospital can pay premiums to insurance
companies by withdrawing a few percent of the salaries of health workers who work in hospitals.
The premium received by the insurance company will protect nurses in carrying out their duties,
thus nurses as health workers have a sense of security because their interests have been
transferred to insurance companies (insurers). The provisions regarding the amount of premium
that must be paid by the hospital to the insurance company depend on the agreement of both
parties and depend on the quality of the responsibility that must be borne by the insurer, so that
the premium submitted by the hospital is in accordance with what is borne by the insurer.
Transfer of the Risk of Nursing Responsibilities to Hospitals through Professional Liability
Insurance
Hospitals as corporations employ health workers to provide health services to the
community. In the event that there is a delegation of medical action from medical personnel to
health workers and/or from hospitals to doctors and there is a risk of errors or omissions in the
health service and causing losses suffered by the patient, it can result in risk liability.
As previously explained, the transfer of nurses' responsibilities to hospitals through
insurance is a form of legal protection for nurses in carrying out their professions to provide
health services to patients who use hospital services. If the nurse in carrying out her duties turns
out to be negligent, causing harm to the patient being treated, of course it will lead to a lawsuit
from the family, this can be transferred to the insurance company through professional liability
insurance.
The hospital's responsibility for the negligence of health workers, especially nurses, is
strengthened by the provisions of Article 46 of Law Number 44 of 2009 concerning Hospitals
which confirms that:
The hospital is legally responsible for all losses caused by negligence committed by health
workers at the hospital.
Hospitals can be held accountable by patients who experience losses because the nursing
action is carried out in the context of carrying out a working relationship. The transfer of the risk
of the nurse's responsibility to the hospital through professional liability insurance.
According to Article 65 of Law Number 36 of 2014 concerning Juncto Health Workers
Article 35 Paragraph (6) of Law Number 38 of 2014 concerning Nursing Juncto Article 46 of
Law Number 44 of 2009 concerning Hospitals it is said that hospitals are legally responsible
against all losses caused by negligence committed by health workers at the Hospital. This
provision provides a legal construction that in the legal aspect of health, risk liability (risk
aanspraklijkheid) is the lex specialis of Article 1367 paragraph (3) B.W (Anwar, 2013). With
this, risk accountability requires supervision from the mandate provider, namely doctors who
employ nurses in hospitals as health workers as mandate recipients. Supervision is one of the
reasons for the existence of accountability for unlawful acts committed by health workers when
carrying out the work.
The principle of risk accountability in the practice of telemedicine medicine proportionally
refers to professional accountability between telemedicine medical practitioners. Its theoretical
legitimacy is based on a professional relationship in the delegation of medical actions guided by
the code of ethics, professional standards, and service standards, as well as standard operating
procedures. So that the consequences of liability are not necessarily based on the fault of the
primary doctor (primary care doctor / PCP) or primary nurse as a subordinate as intended by the
doctrine of vicarious liability. The term "proportional" in risk liability means the distribution of
the rights and obligations of professionals according to the proportion of errors of each party
based on the values of equity, fairness and reasonableness.
As stated by Sidharta that, based on the principles of responsibility in law that are
generally defined as follows (Holijah, 2020).
1. Liability based on a fault is a general principle of civil and criminal law, which states that a
person can be liable in general if it is found the element of his error;
2. Presumption of liability is the principle that the defendant is always considered responsible
until he can prove his innocence, it means that the burden of proof is on the defendant;
3. Presumption of nonliability only known within the scope of a minimal consumer transaction,
no longer applied and lead to the principle of responsible with a limitation of compensation in
the form of money;
4. Strict liability is the principle of responsibility that defines an error, not as a decisive factor;
5. Limitation of liability is the responsibility principle that usually combined with other
principles of responsibilities
In civil law, the principle of accountability is known, including:
a. Contractual Liability.
This type of liability arises because of a broken promise, namely the non-performance of
an obligation (achievement) or the non-fulfillment of the rights of another party as a result of a
contractual relationship. In relation to the therapeutic relationship, obligations or achievements
that must be carried out by health care providers are in the form of efforts (efforts), not results
(results). Therefore, doctors or other health workers are only responsible for medical efforts that
do not meet the standards, or in other words, medical efforts that can be categorized as civil
malpractice.
b. Liability in Tort
This type of liability is a liability that is not based on a contractual obligation, but on an
unlawful act. Understanding against the law is not only limited to actions that are contrary to the
law, one's own legal obligations or the legal obligations of others, but also those that are contrary
to good decency and are contrary to the proper care for other people.
c. Strict Liability
This type of liability is often called liability without fault, considering that a person must
be responsible even though he has not done anything wrong; whether intentional, recklessness or
negligence. This kind of liability usually applies to sold products or articles of commerce, where
producers must pay compensation for the occurrence of disasters due to the products they
produce, unless the producer has given a warning about the possibility of such risks.
d. Vicarious Liability
It is the principle of transferred liability. This type of liability arises due to mistakes made
by subordinates. In relation to medical services, the hospital (as employer) can be held
responsible for mistakes made by health workers who work in a subordinate position (employee).
In the nursing profession liability insurance, the hospital is responsible for the losses
caused by the negligence committed by the nurse as a health worker in the hospital. This can be
seen from the case of Nelson vs. Trinity Medical Center 1988 (Helm, 2006). There is a transfer
of responsibility from the nurse to the hospital where the nurse is on duty. For this reason, the
nursing profession liability insurance uses the principle of vicarious liability. The principle of
accountability for Vicarious Liability is also regulated in Article 1367 BW, which states: "A
person is not only responsible for losses caused by his own actions, but also for losses caused by
the actions of people who are his dependents or caused by goods that are in his possession. under
his control." The principle of transferred accountability requires a person to be responsible for
the actions of others or also called imputed liability.
The transfer of responsibility from the nurse to the hospital where the nurse is on duty,
because the hospital as corporate acts as the supervisor of the hospital staff, one of which is the
nurse health worker who acts as a subordinate. In terms of the hospital's legal responsibility for
the duties and responsibilities of health workers, it is regulated in Article 46 of Law Number 44
of 2009 as mentioned earlier those hospitals are legally responsible for losses caused by
negligence committed by health workers in hospitals. The hospital is accountable based on the
doctrine of vicarious liability.
The vicarious liability doctrine is another corporate criminal liability doctrine adopted from
civil law. In civil law there is a superior doctrine of responsiveness, where there is a relationship
between an employee and an employer or a principal and an agent, and the maxim which reads
qui facit per alium facit per se means that someone who acts through another person is
considered to have committed the act himself. This doctrine is usually applied in relation to acts
against the law (the law of tort) (Reza, 2015). According to Romli Atmasasmita Vicarious
liability is a criminal responsibility imposed on someone for the actions of others (the legal
responsibility of one person for the wrongful acts of another). Barda Nawawi Arief also stated
that vicarious liability is a concept of a person's responsibility for mistakes made by others, for
example actions taken that are still within the scope of his work (the legal responsibility of one
person for wrongful acts of another, as for example, when the acts are done within the scope of
employment). In the implementation of vicarious liability, according to Barda Nawawi, a person
cannot be accounted for for actions committed by others if (Sofian, 2021):
a. does not fall within the scope of work or authority;
b. the action taken by the employee is an act of assistance/assistance (aiding and abetting); and
c. what the employee does is an attempt to commit an offense.
In the context of medical malpractice actions, hospitals can be held directly liable for their
own Negligence, as well as be held “vicariously” liable for the negligent actions of an employee.
Vicarious liability means a party is held responsible not for its own Negligence but for the
Negligence of another (Mathur, 2021). According to the legal rule of vicarious liability, any
employer (including hospitals) is liable for its employees' negligence. So, the hospital is legally
liable for any malpractice committed by a physician, nurse, or other health care providers who
are employed by the hospital (Mathur, 2021).
As explained above, the principle of vicarious liability can be used as a means to provide
legal protection to nurses working in a hospital who commit errors (negligence) by nurses as
long as the nursing action is carried out within the scope of their duties as health workers and is
not intentional. In other words, the action is an error in the form of negligence (negligence).
The transfer of nurses' responsibilities to hospitals through nursing professional liability
insurance based on the principle of vicarious liability is possible on the basis of freedom of
contract. The scope of Professional Indemnity Insurance is to provide cover for the extent of
financial damage for the loss caused to the victim against unintentional errors and omissions by
the doctor, insured qualified and nonqualified employees, and staff. It also covers the cost of
defending oneself in the court of law (Cost of Decree). The plan covers liabilities for a year from
the point of subscription. However, the policy does not cover criminal actions (Mathur, 2021).
In the context of the working relationship between the hospital and its health workers,
namely nurses and doctors, the principle of risk responsibility (risk aanspraklijkheid) is used
based on the doctrine of vicarious liability. The legal basis is Article 1367 paragraph (3) B.W.
and Article 46 of Law no. 44 of 2009 concerning Hospitals.
In the case of the transfer of responsibility, the hospital acts as the insured and the
insurance company as the insurer. The insured party has an obligation to pay a premium based
on the agreement of the parties to the insurer to take care of all the consequences and burden of
responsibility for the work risks of nurses as health workers who work for the benefit of the
hospital. The hospital as a corporate based on the Vicarious Liability principle is responsible for
negligence committed by the Health Care Provider (Evi, 2015). in this case is a nurse who works
for and on behalf of the hospital, as long as the action has been carried out with standards that
have been regulated by the profession, institution and government. This is regulated in Article 29
and Article 36 of Law Number 38 of 2014 concerning Nursing, where there is a clear working
relationship based on the rules established between nurses and hospitals. The hospital can be
responsible for providing coverage through insurance to nurses who perform nursing actions in
hospitals because it is part of the obligation to carry out service tasks that are bound by an agreed
working relationship as a form of providing legal protection to the nursing profession. In
addition, in Article 36 of Law Number 38 of 2014, it is the obligation of hospitals to be
responsible for patient losses due to negligence of health workers which is in accordance with
the provisions of Article 46 of Law Number 44 of 2009 concerning Hospitals.
Conclusion
Nurses as professionals in the health sector are very important to be protected by
professional liability insurance. In this case the hospital acts as the insured and the insurance
company as the insurer. The hospital is obliged to pay a premium to the insurance company. The
importance of transferring the responsibility of nurses to hospitals through nursing profession
liability insurance based on the principle of vicarious liability, in order to protect nurses as health
workers working in hospitals from demands from patients for medical actions they have taken.

Acknowledgment

End Notes (If Available)

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