Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument

• Author: I. Glenn Cohen
• Position: Assistant Professor and Co-Director, Petrie–Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School
• Pages: 1467-1567

I. Glenn Cohen. Assistant Professor and Co-Director, Petrie–Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School. J.D., Harvard Law School. igcohen@law.harvard.edu. Thanks to Anne Alstott, David Boucher, Gabriella Blum, John Blum, Rachel Brewster, Brietta Clark, Nathan Cortez, Lilian Faulhaber, Michael Frakes, Stavros Gadinis, John Goldberg, Tim Greaney, Jim Greiner, Bert Huang, Allison Hoffman, Adriaan Lanni, Katerina Linos, Kristin Madison, Anup Malani, Abigail Moncrieff, Katherine Pratt, Morris Ratner, Chris Robertson, Naveen Rao, Ben Roin, Bill Sage, Ben Sachs, Jed Shugerman, Larry Solum, Matt Stephenson, Jeannie Suk, Nick Terry, and Stephen M. Weiner for written comments on earlier drafts. For their comments, I also thank participants at the Petrie–Flom Health Law Policy, Biotechnology, and Bioethics Workshop at Harvard Law School on November 6, 2008; at the Annual Conference of the American Society for Law, Medicine & Ethics on June 6, 2009; at the Faculty Workshop at Loyola Law School on September 3, 2009; at the Health Law Scholars Workshop of the American, Society for Law, Medicine & Ethics and the St. Louis University School of Law Center for Health Law Studies on September 12, 2009; and at the Harvard Law School faculty workshop on November 30, 2009. Justin McAdam provided invaluable research assistance.

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I Introduction

In the past few years it has become increasingly apparent that healthcare has ceased to be a good supplied and consumed purely locally and has instead become a truly globalized good, as a number of journalists,¹ physicians,² and policy makers³ have recognized. In this Article, I examine more closely one part of this change called, at times accurately and at times pejoratively, “medical tourism”⁴—the travel of patients who are residents of one country, the “home country,” to another country for treatment, the “destination country.”

In some senses medical tourism is a very old phenomenon: ancient Greeks traveled to spas known as “Asklepia” in the Mediterranean for purification and spiritual healing; for over 2000 years foreign patients have traveled to the Aquae Sulis reservoir built by the Romans in what is now the British town of Bath; and in 1980 Steve McQueen died while receiving the unapproved cancer treatment, Laetrile, in a clinic in Rosarito, Mexico.⁵ Moreover, our most outstanding facilities like the Mayo Clinic have long attracted medical tourists to the United States, especially wealthy patrons from the developing world.

What has changed in recent years, and what I will focus on in this Article, is the opposite phenomenon—the growing number of U.S. and other Western citizens who are traveling abroad to less developed countries (“LDCs”) such as India, Thailand, and Malaysia for surgical treatments. The numbers relating to medical tourism from this new century have beenPage 1472 steadily growing. In 2004, more than 150,000 foreigners sought medical treatment in India, and that number is projected to increase by 15% each year for the next several years.⁶ In the same year, Malaysian hospitals treated 130,000 foreign patients—a 25% rise from the previous year.⁷ In 2005, Bumrungrad International Hospital in Bangkok, Thailand, alone saw 400,000 foreign patients, 55,000 of whom were Americans.⁸ The revenues generated by the treatment of these foreign patients are also significant: in 2004 Cuba received $40 million from medical tourism, Malaysia $27.6 million, Jordan $500 million, and it is estimated that medical tourism in India will generate $2.2 billion in revenues by 2012.⁹ Dubai, partnering with a Harvard Medical School subsidiary, has built the “Dubai Health Care City,” a massive healthcare complex the size of a small city.¹⁰

For U.S. patients, medical tourism promises significant cost savings. By one estimate, the average cost of getting an elective coronary artery bypass graft in 2005 in California was over $45,000, compared to around $22,000 in Angeles hospital Mexico City, Mexico, $15,000 in Burmrungrad hospital in Bangkok, Thailand, and $7500 at the Apollo hospital in Chennai, India.¹¹ Surveying by country rather than by hospital, a 2007 report from the National Center for Policy Analysis suggested the following price differentials for several common surgeries¹²:

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Procedure	U.S.; Retail; Price	U.S; Insurers’; Cost	India	Thailand	Singapore
Angioplasty	$98,618	$44,268	$11,000	$13,000	$13,000
Heart bypass	$210,842	$94,277	$10,000	$12,000	$20,000
Heart-valve; replacement; (single)	$274,395	$122,969	$9500	$10,500	$13,000
Hip replacement	$75,399	$31,485	$9000	$12,000	$12,000
Knee replacement	$69,991	$30,358	$8,500	$10,000	$13,000
Gastric bypass	$82,646	$47,735	$11,000	$15,000	$15,000
Spinal fusion	$108,127	$43,576	$5500	$7000	$9000
Mastectomy	$40,832	$16,833	$7500	$9000	$12,400

While most accounts suggest the primary U.S. users of medical tourism appear to have been the uninsured and underinsured, there are indications that other patient groups will soon become major users.¹³ Insurance companies and self-insured employers are considering (or in a few cases have already implemented) programs that would incentivize or mandate their insured patients to use medial tourism—what I will call “insurerprompted medical tourism.” In 2006, Newsweek reported that at least forty U.S. corporations signed on to a medical-tourism plan offered by United Group Programs, a health insurer in Boca Raton, Florida.¹⁴ West Virginia recently debated legislation that would have given its public employees incentives to use medical tourism,¹⁵ and there have even been proposals to get Medicare and Medicaid beneficiaries to use the health care services of foreign countries.¹⁶ In sharp contrast, Texas has used its regulatory powersPage 1474 over health insurers to prevent those operating in the state from offering a plan that requires patients to travel to a foreign country to receive a particular healthcare service.¹⁷

The hope that medical tourism might improve the lot of U.S. patients is obvious from the title adopted by the Senate Special Committee on Aging for its recent hearing on medical tourism: “The Globalization of Health Care: Can Medical Tourism Reduce Health Care Costs?”¹⁸ Nevertheless, for both uninsured and insured patients, medical tourism presents serious legal and ethical issues. To see some of those issues consider the following pair of case studies setting out two archetypal instances of medical tourism I will explore in this paper:

1. Carl is one of the estimated 47 million Americans without health insurance.¹⁹ After experiencing the symptoms of angina, he reluctantly sees a cardiologist in his home town of Milwaukee whom he pays out of pocket. A battery of tests reveals significant atherosclerotic narrowing in several arteries, and the cardiologist recommends bypass surgery. In Milwaukee, bypass surgery purchased out of pocket costs somewhere between $48,350 and $73,300 depending on the hospital.²⁰ Carl can get the same surgery for $10,000 at Bumrungrad Hospital in Bangkok, Thailand, and decides to do so. Unfortunately, he suffers an ischemic stroke (the cutting off of blood supply to the brain) during the procedure. As a result, he suffers partial paralysis in his right arm, moderate speech problems, pain, and depression. Believing the stroke to be the result of medical error, he wants to sue the...