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Considering Medical Tourism? Think About the Lack of Malpractice Protections

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No doubt even routine, noninvasive surgical procedures such as wisdom teeth extraction and appendectomies can leave even patients with dental and health insurance with thousands of dollars in uncovered medical expenses. Needing a more advanced surgery such as an organ transplant or knee replacement can put an uninsured patient on the hook for a few hundred thousand dollars.

It's not surprising, then, that growing numbers of Americans are looking outside the United States for low-cost alternatives to at-home hospital care. So-called "medical tourism" is now a recognized sector of the health care industry, served by for-profit companies like Patients Beyond Borders and Health Travel Guides that facilitate trips to Mexico, Brazil, Thailand, India and Caribbean nations for people wanting or needing everything from cosmetic surgery and in vitro fertilization treatments to heart and lung transplants.

In looking at the expansion of medical tourism, the Chicago Tribune on August 3, 2011, noted that many of the international hospitals, clinics, doctors and surgeons who serve American patients hold U.S. credentials and accreditations. So while general quality of care may not be a red flag for people considering medical tourism, anyone who travels to receive surgical services the United States does need to understand that he or she is also all but leaving behind legal protections for recovering monetary damages from surgeons and health care facilities that make mistakes or prove negligent in protecting patients.

Malpractice, misdiagnoses, errors and even outright patient abuse occur in even the highest-quality U.S. hospitals and clinics. And while holding negligent, reckless, improperly trained or irresponsible parties who caused injuries, illnesses or deaths accountable is not always easy, illnesses or deaths they caused is not always easy, the United States has a strong civil law system in place to allow harmed patients and their surviving family members seek justice.

Such legal protections for patients do not exist for Americans who have operations overseas. For this reason, the American College of Surgeons in 2009 advised "patients to consider the ... legal implications of seeking medical treatment abroad prior to deciding on a venue of care. In the event of proven medical liability for injury, viable means for the recovery of damages should be in place. Patients should be aware that many of the means for legal recourse available to citizens in the U.S. are not universally accessible."

A medical tourism consultant stressed that malpractice issues remained unresolved in 2011, writing in Medical Tourism Magazine that "one of the greatest issues is the lack of legal regulation for cases of medical malpractice. The fact that no standards are in place or no regulation body has been created in order to address the very relevant issue of medical malpractice is weakening the industry."

Attorneys who have taken up the question of malpractice protections for medical tourists have identified only barriers instead of solutions. In the aptly named Law and Contemporary Problems, a recent graduate of Duke Law School noted that U.S. laws generally do not apply to medical personnel practicing in other countries, U.S. courts would find it nearly impossible to assert civil jurisdiction in cases that involved medical mistakes or surgical errors committed elsewhere, and even holding medical tourism facilitators vicariously liable for medical malpractice probably would most likely not work because a defendant could reasonably claim that a patient knowingly assumed risk by not seeking U.S. health care.

Having represented victims of medical malpractice and surgical errors in Virginia for more than 20 years, I know all too well how much patients harmed by negligence must rely on courts to ensure they receive the money they need to recover from the injuries inflicted by medical personnel and health care facilities. Since that legal recourse is not available for medical tourists, I must stress that every patient needs to take the lack of medical malpractice protections into consideration when thinking about traveling internationally to receive care.

EJL
 
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