Medical Tourism Growing with the Rising Cost of Health Care

Posted December 12, 2012 in Medical Malpractice Personal Injury by

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Need a new hip, some dental work, perhaps a gastric bypass, but don’t have the cash or insurance to cover it? Millions of Americans are choosing foreign destinations for medical or cosmetic procedures to escape the expensive U.S. health care system. In some cases, insurance carriers even encourage the aptly-named practice of medical tourism to cut down on their own costs.

It sounds almost too good to be true: Get affordable treatment in an exotic location which, even with airfare and sightseeing taken into account, will still cost far less than seeking similar medical care back home. A study from 2008 predicts that by 2016, 16 million Americans per year will travel abroad for health care, a number that could continue to rise with ongoing increases in the cost of domestic procedures. And nearly one in three people in a recent worldwide survey said they would be open to the idea of crossing a border to receive cheaper medical care.

However, this burgeoning industry comes with a huge caveat. Many foreign hospitals are clean, efficient and effective; unfortunately, there are few guarantees of quality of care, and patients who are injured or killed by medical malpractice may have no legal recourse to make whole the damages they suffered.

So far there has been little study or attention given to the phenomenon, but a law professor,  I. Glenn Cohen, co-director of the Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, is trying to make inroads on the legal implications of medical tourism.

Cohen is writing a book, “Patients with Passports: Medical Tourism, Law, and Ethics,” examining medical trips abroad across the legal spectrum: procedures that are legal in the patient’s home country, those that are illegal in the home country but legal in the destination country and services that are illegal in both places.

Cohen also published a paper in 2010 on how patients traveling abroad for medical care could be better protected.

 

Out of Jurisdiction

I. Glenn Cohen

A big danger, legally speaking, is that victims of malpractice in foreign hospitals are effectively unable to sue for compensation. “What I tell people is in the average case of the American medical tourist, you will have a very difficult time recovering [damages] from a malpractice done abroad,” says Cohen. “You have trouble getting in front of a U.S. court for jurisdiction.”

Seeking redress in the host country is no easier. Foreign laws are frequently unfavorable to malpractice cases, and lawsuits in foreign legal systems can take years and rack up huge costs with little chance of success. According to a recent Reuters story, Brazil, Costa Rica India, Mexico and Panama are among the top destination nations for medical tourists.

However, there are a few options under current law that people seeking medical procedures can try to mitigate the risks. “The positive story is, there is a product called medical malpractice insurance where a patient can go to a third-party provider to cover any medical error that occurs abroad,” Cohen says. “I also encourage people to ask a provider or foreign hospital if they have an arbitration process rather than having to resort to litigation.”

Another option is to try to sue the marketers, travel agents, insurers and other facilitators who funnel U.S. patients to foreign hospitals. “Now the good news with facilitators is they’re more likely to be subject to personal jurisdiction in U.S. court,” the law professor notes. “The bad news is that for facilitators, medical malpractice theories are less robust.”

 

Opportunity for Regulation

To date it’s unclear how a major lawsuit would play out against a medical tourism facilitator, because it hasn’t happened yet. “There’s no case law on the subject so it’s hard to know what will happen,” says Cohen. “My own view is this is an opportunity for regulation.”

State and federal governments, he suggests, could jump out in front of the industry and impose certain markers to help improve patient safety. “If you’re talking about the state, they have a lot of power to regulate insurance” (with an exception for self-insured firms due to ERISA preemption), Cohen says. “They can easily say no product will be allowed unless they contractually agree to American tort law and personal jurisdiction in the USA.” 

Accepting arbitration could also be a condition of allowing foreign hospitals on American insurance plans. “You only do business with providers that provide these kind of protections for American patients,” the attorney suggests. “You want to channel patients toward providers who provide good protections.”

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