Medical tourism and the legal impediments to recovery in cases of medical malpractice.

• Published date: 22 December 2010
• Date: 22 December 2010

I. DIAGNOSING A RECENT PHENOMENON--MEDICAL TOURISM AS AN ALTERNATIVE TO THE UNITED STATES HEALTH CARE SYSTEM

In abandoning the traditional notion that medical treatment is a service received close to home, millions of Americans are crossing foreign borders to have medical procedures ranging from plastic to open-heart surgery. (1) This trend, known as "medical tourism," (2) has increased exponentially in recent years by appealing to a common aspect of every patient's anatomy: his wallet. Even when factoring in all of the costs associated with foreign travel to obtain treatment, savings can be as high as 88%. (3) To be sure, medical tourism has provided an array of medical options to millions of uninsured and underinsured American patients. (4) However, beneath the surface lurks an Achilles heel that threatens to derail this trend.

That threat has little to do with medicine and much to do with the law. Medical malpractice, while a concern for every patient, is not something that the average American patient likely plans for in advance. People receive treatment and hope for the best, and if things go awry due to the doctor's incompetence, the patient knows that he can always resort to the American legal system for protection. Once a patient leaves the United States for treatment, however, that assumption is badly mistaken.

A potential victim of malpractice abroad faces significant impediments to obtaining jurisdiction over foreign defendants and enforcing judgments against them overseas. Ultimately, unless patients begin to account for the legal impediments to malpractice suits against foreign doctors before they receive treatment, the United States legal system itself will become an incurable ailment that prevents injured patients from vindicating their rights. Yet to understand why these legal impediments have been largely overlooked by the medical community, it is important to first consider what has driven the medical tourism phenomenon to date.

While foreign hospitals have made steady and marked improvements in the quality of available medical treatment, the United States has become the most expensive health care market in the world. (5) Accordingly, many Americans have begun to ask a basic question: Why put up with costly, run-of-the-mill health care at home when you can be treated just as well abroad at a fraction of the cost? (6) With millions of people answering this question by electing to travel to foreign countries for a litany of medical procedures, the upward trajectory of this trend carries the potential for economic and legal consequences on an unprecedented scale. (7)

The concept of outsourcing medical treatment has become colloquially known as "medical tourism," whereby Americans seeking medical care are increasingly making trips abroad at their own expense for a wide array of elective and non-elective medical procedures. (8) While any number of factors may be cited to account for medical tourism's rising popularity in the United States, there are at least two common considerations that appear to be driving this trend: cost and the quality of available care. (9)

Viewed purely in monetary terms, the benefits of medical tourism can be staggering. America's health care inflation has consistently outpaced its economic growth, which has contributed to making the United States the most expensive health care market in the world. (10) When contrasting the cost of certain major medical procedures in the United States with the cost of those procedures in leading medical tourism countries such as India, Thailand, Singapore, and Malaysia, the potential savings are of immense proportions. (11) For example, a heart bypass surgery in the average American hospital will run a patient approximately $130,000. (12) In India and Thailand, this procedure would cost merely 8% of that amount, while in Malaysia it would cost 7%, and in Singapore 14%. (13) Consider also a heart valve replacement, which would cost roughly $160,000 in the United States. (14) In India, Thailand, and Malaysia, it would cost 6% of that amount, while in Singapore it would cost 8%. (15)

While such marked disparities in treatment are most readily apparent when comparing the pure cost of a medical procedure, a true cost comparison must also include the expenses associated with traveling to a foreign country for treatment. Naturally, factoring in travel to and from a surgical facility, the required aftercare, and any other incidental costs may reduce the price differential appreciably. (16) However, even when extraordinary travel and insurance costs are taken into consideration for some of the more inexpensive procedures, "the relative cost advantage for medical tourism is 28 to 88%, depending on the location and procedure." (17)

With these types of savings available for procedures that cost less than $10,000, (18) medical tourism has become a cost effective option not only for uninsured Americans, but also for those who are underinsured. Such people may find it cheaper to travel abroad and pay for an operation out-of- pocket rather than find the money to cover the deductibles or copayments that would be charged for the same procedure if performed in the United States. (19) Considering that more than "[forty-five million] Americans are uninsured and many millions more are severely underinsured," (20) the medical tourism market may be a cost-effective alternative for a significant number of Americans who might not otherwise be able to afford treatment.

A second primary factor driving the increased popularity of medical tourism is the quality of care available abroad. (21) "While medical travel to countries outside the United States has existed for years, its potential growth was hindered by capacity and infrastructure constraints--among them, communications, transportation, water and sewer, electricity and power generation--in developing nations." (22) Despite these previous setbacks, "strong economic development in these countries has provided the resources and opportunities to build massive health care centers for patients traveling from all around the world." (23) Some of the leading foreign countries that have developed the infrastructure to accommodate a significant portion of the world's medical tourists include Thailand, with 1.2 million tourists; Singapore, with 410,000 tourists; and Malaysia, with 300,000 tourists in 2006. (24) By 2007, India had also joined this group, hosting 450,000 tourists. (25)

In addition to various countries' development of the requisite facilities and infrastructure to participate in the medical tourism market, the actual quality of care has been aided by partnerships formed between health care centers abroad and reputable medical institutions based in the United States. (26) Further, foreign governments have begun investing in facilities and making it more logistically feasible for foreigners to obtain treatment away from homes With these significant advances, it is unsurprising that, in the coming years, an unprecedented number of Americans have been projected to place their health in the hands of foreign doctors. (28) In 2005, approximately 500,000 Americans traveled overseas to receive medical treatment. (29) By 2007, that number had grown to 750,000, with a projected growth rate of 100% for each of the next three years. (30) With more patients willing to travel abroad, foreign care providers have every economic incentive to attract as many medical tourists as they can accommodate. (31)

Recognizing that medical treatment abroad carries concerns regarding the quality of treatment, various resources have emerged to provide medical tourists with the necessary information to make informed health care decisions. (32) Presently, various international organizations have taken steps to evaluate the quality of clinical care provided by medical tourism facilities worldwide. (33) Their primary mechanism for assessing these facilities is a system of accreditation. (34) Yet, while international

organizations have taken strides toward providing standards to guide medical tourists, the preeminent medical body in the United States--the American Medical Association (AMA)--has fallen well behind in addressing this trend. It was not until June 2008 that the AMA outlined steps for obtaining care abroad. (35) The guidelines, which are extremely brief, were only promulgated as "an important starting point for consideration before making the decision to go abroad for health care." (36) Despite their brevity, the guidelines offer one piece of advice that may be just as important as any medical-related concern: "Patients should be informed of their rights and legal recourse prior to agreeing to travel outside the U.S. for medical care." (37) Even when patients are medically

well-informed, they take on an added liability that extends beyond their health--the risk that a foreign doctor may commit malpractice, and that no adequate legal remedy may be pursued in the United States.

Despite the considerations that have made medical tourism a more appealing option in recent years, a factor that may ultimately stunt the growth of medical tourism revolves around the legal recourse that may or may not be available to American patients when malpractice is committed by a doctor overseas. (38) It may very well be the case that a patient has expressly bargained for and accepted the risk of malpractice without recourse before undergoing a medical procedure abroad. For example, in Bangkok, patients must waive their right to sue their doctors for medical malpractice. (39) In these cases, the patient's assumption of the risk is what permits doctors to offer procedures at the vastly reduced cost that is so attractive to the patient. (40) The waiver allows these doctors to charge lower rates for the procedure since they do not bear any costs for committing malpractice. (41)

However, in the case that a patient elects not to sign away his right to bring...