Keywords
discursive construction
jurisprudence
medical malpractice
negligence
How to Cite
Abstract
The legislative framework for medical malpractice adjudication (the legal process to determine whether a medical professional acted negligently) is informed by the intersection of scientific uncertainty and criminal culpability. The purpose of this study is to explore how judges exercise evaluative positions, effectively balancing the rights of victims and protection of medical professional integrity. By applying qualitative discursive analysis and Appraisal Theory, it scrutinizes the way in which judges construct legal truth through the use of hedging and intensification strategies. Evidence of two competing metaphorical paradigms emerged from the findings: the Sacred/Paternalistic paradigm, supported by the use of hedging, views medical errors as inherent risks of medical practice, and the Horizontal/Contractual paradigm, supported by the use of intensification, emphasizes the suffering of patients and violations of service. The legal framework of Indonesia’s Law No. 17/2023 serves to further entrench these discursive strategies by establishing the Professional Discipline Council, which acts as a buffer between professional and legal authority. The flexibility of the concept of culpa affords judges the ability to determine whether they will protect the sanctity of the profession or the material interests of victims by determining which linguistic choices they will make.
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