Professor Nathan Cortez: Legal Risks In Medical Tourism

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Professor Cortez recently spoke at the “Medical Markets” Symposium held by the North Carolina Journal of International Law and Commercial Regulation of the legal ambiguities associated with the growing trend of medical tourism in an unregulated global health market. More patients are opting to leave the United States to have procedures done overseas for a variety of reasons—the procedure may be unavailable or illegal in the U.S., or perhaps cheaper elsewhere—yet they may not realize that they may be forgoing the legal protections of American courts.[1] Patients are bearing the brunt of legal risks because it can be very difficult to successfully sue in the U.S. or overseas.[2]

In the U.S., jurisdictional issues and deciding under which theory of liability to sue are difficult obstacles to overcome when dealing with a foreign doctor and foreign hospital.[3] Professor Cortez focused on the legal system in India to showcase the challenges patients face even if they are willing to sue overseas. Typical delays in India’s civil courts can go on for fifteen to twenty years, and while patients can elect to pursue claims through consumer forums known as Consumer Dispute Redressal Agencies, there can still be delays averaging two to three years as well as difficulties with securing expert testimony and accessing medical records.[4] Furthermore, overly complex cases may even be transferred back to the civil courts, and in the end, a successful patient can expect only very limited compensation.[5]

As Professor Cortez points out in his article, Recalibrating the Legal Risks of Cross-Border Health Care, medical tourism raises questions about whether patients fully understand the “tradeoff” they are making when they seek medical care abroad.[6] As employers and insurers increasingly allow for the outsourcing of procedures for their employees and insured, they are protecting themselves against legal liability with the use of releases and waivers, but it becomes unclear whether patients “fully digest just how few legal remedies remain or what options they have if something goes awry.”[7] Furthermore, when there is a lack of literature available for patient assessment of these risks, can their ultimate decisions to pursue such treatment be said to amount to informed consent?[8] Additionally, with such limited remedies available to patients, are these risks potentially exacerbated by a lower quality of care and a higher likelihood of medical mistakes? I am appreciative of Professor Cortez’s presentation for increasing my awareness of the problems associated with the growing popularity of medical tourism, but I am left with the unsatisfactory feeling that the global health market is far outpacing the medical jurisprudence to supply recourse to these risks.

[1] Nathan Cortez, Associate Professor of Law, Southern Methodist University Dedman School of Law, Presentation at North Carolina Journal of International Law and Commercial Regulation Symposium (Feb. 1, 2013).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Nathan Cortez, Recalibrating the Legal Risks of Cross-Border Health Care, 10 Yale J. Health Pol’y, L. & Ethics 1, 3 (2010).

[7] Id.

[8] Cortez, Presentation, supra note 2.

Posted by Danika J. Hoke on Mon. March 25, 2013 9:13 PM
Categories: Medical Markets, Symposium

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