This paper examines the phenomenon of medical malpractice through the dual lens of Indonesian positive law and Islamic criminal law. Medical malpractice, defined as professional negligence deviating from established medical standards, poses significant legal and ethical challenges when it results in severe patient harm or fatality. In Indonesian positive law, malpractice is regulated through a comprehensive framework, including the Medical Practice Act (UU No. 29 of 2004), the Health Act (UU No. 17 of 2023), the Criminal Code (KUHP), and civil law provisions, which collectively impose administrative, criminal, and civil sanctions. In contrast, Islamic criminal law addresses malpractice within the broader context of safeguarding human life (hifz al-nafs) and property (hifz al-maal), emphasizing moral accountability through mechanisms such as diyat, qishash, and ta’zir. This study employs a conceptual and normative legal approach to analyze both regulatory systems, highlighting their respective strengths and limitations in addressing professional negligence. The analysis reveals that while positive law ensures legal certainty through codified regulations and formal adjudication processes, Islamic law offers a restorative and flexible framework that integrates ethical and spiritual dimensions into legal accountability. The paper concludes that an integrated approach combining both systems could enhance the regulation of malpractice, ultimately promoting improved patient safety and accountability in medical practice.
Fahmi et al. (2025) studied this question.