Healthcare: booming medical tourism industry presents challenges for patient safety and redress
Margaret TaylorMonday 9 December 2024
The medical tourism market is booming. Around 14 million people travel abroad each year to receive medical treatment, according to the Medical Tourism Association, with patients from developed nations such as the UK and US typically travelling to less-developed countries to access health services at a significantly lower cost than they could at home.
A report from Fortune Business Insights put the value of the global medical tourism market at $24.1bn in 2023, with the figure expected to rise to over $100bn by 2032. Much of the growth can be ascribed to developing nations actively marketing their services at a time when, in the UK for instance, long National Health Service (NHS) waiting times and high private healthcare costs mean people are seeking faster or cheaper alternatives elsewhere.
However, while individual jurisdictions have taken steps to tighten domestic regulations and safety standards, there are significant challenges in attempting to seek redress if a treatment has gone wrong. ‘The rules relating to bringing a cross-border claim, when the person bringing the claim is from one country but the situation that gave rise to the claim happened in a different country, are complex’, says Victoria Williams, a senior associate and clinical negligence specialist at UK law firm Stewarts.
Williams says there are some instances where the UK courts will accept jurisdiction for claims relating to something that happened overseas. If the contract governing the treatment includes a clause stipulating where any related disputes can be litigated, then the UK courts could be the forum of choice. However, there’s no guarantee that such a clause will exist and Williams warns that ‘being a British citizen does not guarantee you can bring a claim in your local courts’.
If it’s not possible to bring a claim at home, patients will have to pursue the matter in the country in which the treatment was carried out. That can lead to disappointment, says Cécile Théard-Jallu, Co-Chair of the IBA Healthcare and Life Sciences Law Committee, because there can be a significant disparity from one country to another in terms of what’s considered an acceptable level of service.
‘If an offering is properly authorised you should have the security of knowing it is considered sufficiently safe in that country’, says Théard-Jallu, who’s also a partner at De Gaulle Fleurance in Paris. ‘The issue is that safety requirements are not the same from one country to another and some countries can be more flexible [in their approaches to safety] than others. The patient takes the risk and if a person is ready to pay and the offer is lawful in the country they are travelling to [then they might not have a viable claim].’
The issue is that safety requirements are not the same from one country to another and some countries can be more flexible [in their approaches to safety] than others
Cécile Théard-Jallu
Co-Chair, IBA Healthcare and Life Sciences Committee
Alan Adcock, Asia Pacific Regional Forum Liaison Officer of the IBA Healthcare and Life Sciences Law Committee, highlights that Thailand is a major medical tourism destination, boasting 62 facilities accredited by US non-profit Joint Commission International and accounting for nine per cent of the global market in 2023.
There are no specific laws governing the sector, though, meaning the process that foreign nationals looking to pursue a negligence claim can follow is not straightforward. ‘The Medical Facility Act [1998], also known as the Sanatorium Act, and its sub-ordinates sufficiently oversee the general operation of medical facilities and the services they provide, ensuring compliance with basic standards for safety and hygiene’, says Adcock, who’s also a partner and director at Tilleke & Gibbins in Bangkok. ‘These regulations, however, do not address the management of foreign patients, the arrangement of treatments for international visitors, or the operations of medical tourism agencies.’
Adcock explains that medical tourists can seek recourse through tort liability under Section 420 of the Civil and Commercial Code, which states that a person who unlawfully injures someone else is bound to make compensation. ‘Under this provision, individuals who suffer harm or damages due to the wrongful or negligent acts of another party, such as healthcare providers, may file a lawsuit seeking compensation, but the burden of proof will be borne on the plaintiff, who must demonstrate that the healthcare provider acted negligently or unlawfully and that such actions directly caused harm or damages,’ he explains.
It's a similar situation in Mexico, which has become one of the most popular medical tourism destinations thanks in large part to treatments in the country being around 80 per cent cheaper than in its larger neighbour, the US.
Cecilia Stahlhut, a partner with Hogan Lovells in Mexico City, says a consequence of this has been that facilities have begun to pay closer attention to health and safety regulations while the Federal Commission for the Protection against Sanitary Risk (COFEPRIS) is taking a more stringent approach in terms of its regulatory duties. Foreign nationals looking to pursue a claim would begin by making a complaint to COFEPRIS and could also file civil and criminal claims in the courts, Stahlhut explains, but she warns that the process is onerous.
‘You would need to hire lawyers here in Mexico and have someone here to follow the process’, she says. ‘As in other countries, when talking about medical responsibility this can be a very long process. Finding all the evidence and really being able to demonstrate that there was some kind of failure is really hard.’
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