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The liability implications of medical tourism

By Douglas W. Lundy, MD

What happens if something goes wrong?

Medical tourism is a relatively new, rapidly developing industry. Medical tourists are patients who travel overseas to undergo surgical procedures or other treatments that are either unavailable or too expensive in the United States.

Thailand is among the most well-known destinations for medical tourism.

Many medical tourists are uninsured or underinsured individuals. Others are seeking treatment options available abroad that are currently unavailable in the United States. Last year, more than 500,000 Americans traveled to other parts of the world to undergo significant operations with assurances that the surgeons, staff, and facilities are comparable to those found in the United States.

Medical tourism is often promoted by U.S.-based companies. They have easy-to-find, attractive Web sites promoting state-of-the-art surgery, a beautiful resort location, and a much lower cost. Among the procedures advertised are total hip and total knee arthroplasties, cardiac bypass surgery, transplant surgery, and cosmetic surgery. Patients are assured of high quality care by using their services.

Many foreign destinations promote medical tourism. Providers in Cuba advertise a total hip arthroplasty for a total cost of $5,845. Columbian hospitals claim to use U.S.-made, U.S. Food and Drug Administration (FDA)-approved implants in their total hip and knee arthroplasties. In India, where medical tourism may surpass the $2 billion mark by 2012, hospitals offer advanced procedures such as cardiac surgery and hip resurfacing. Thailand is among the most famous destinations for medical tourism; other countries actively involved in developing medical tourism include Jordan, Israel, Philippines, New Zealand, Singapore, Hong Kong, Malaysia, and Ukraine.

Interestingly, insurers are now entering the medical tourism business. BlueCross BlueShield of South Carolina will pay for surgery at Thailand’s Bumrungrad International Hospital for insured patients “whose policies do not cover the surgery that they need.” BlueShield and Health Net are permitting their members to receive medical care in Mexico.

Is it safe?
The Joint Commission (previously the Joint Commission for the Accreditation of Healthcare Organizations, or JCAHO) is the main accrediting body for hospitals in the United States. Many physicians don’t realize a similar entity, the Joint Commission International (JCI), is part of the same organization. To gain credibility and improve their image, many overseas facilities seek accreditation from JCI, including healthcare facilities in Singapore, home to JCI’s Asia-Pacific office.

The American Medical Association believes that significant differences in accreditation standards apply to hospitals in the United States versus those abroad. Only objective, quality outcome data will demonstrate whether patients receive adequate and appropriate care overseas.

Among the medical risks patients face when having major surgery performed outside the United States are infectious diseases not found in more developed countries. Nations such as India, Thailand, Malaysia, and Costa Rica have a higher incidence of tuberculosis, hepatitis A, amoebic dysentery, and other diseases than the United States. These pathogens present a real threat to a person having a major surgical procedure, whose immune system is unaccustomed to them.

What if there’s a problem?
Some of the most outspoken opponents of medical tourism are attorneys who see this trend as a threat to their interests. They emphasize the significant problems that medical plaintiffs will have seeking justice in a foreign legal system.

A patient who is injured through negligent care has very limited options in obtaining justice and compensation. With different laws in other nations, the legal alternatives for patients are few. In his book on medical tourism, Beauty From Afar: A Medical Tourist’s Guide to Affordable and Quality Cosmetic Care Outside the U.S., Jeff Schult states “My sort of blunt advice is that if your primary concern in going to a doctor, surgeon or dentist is whether or not you’re going to have legal recourse if you don’t like the work you get, you shouldn’t go overseas.”

Medical liability laws also vary significantly among countries. Patients who are considering elective surgery abroad should not assume that they will be afforded the same legal protections against medical negligence as they receive in the United States.

Patients who have elective surgery in other countries will have a difficult time suing their foreign medical providers in cases of medical negligence. If the patient tried to sue the overseas provider, the matter would be considered in foreign courts, under different laws. A patient could try to convince a U.S. court that it had jurisdiction in the matter, but would not likely succeed.

A new insurance product available is intended to address medical negligence affecting patients who travel abroad for elective surgery. The “Patient Medical Malpractice Insurance” is considered “first-person” insurance because the patient purchases the policy before traveling. Claims are handled without attorneys in accordance with U.S. laws and customs and are paid in U.S. dollars. This coverage may benefit medical tourists who are concerned about their options if a bad outcome occurs due to medical negligence.

Impact on orthopaedic surgeons
Orthopaedic surgeons in the United States, however, may be faced with the difficulty of attempting to salvage a bad outcome after a patient’s surgery was performed overseas. The patient may have financial difficulties that prompted the decision to have surgery overseas; having exhausted whatever resources were available, the patient may be angry and frustrated. The procedure or medications may be experimental, and the implants that were used may be unconventional and removing them may be very difficult. Postoperative infections may be caused by pathogens unfamiliar to many American physicians.

Nonetheless, these patients should be treated by the surgeon most qualified in addressing the complications. An in-depth discussion and informed consent should occur so that the patient has a clear understanding of the challenges facing the surgeon and the possible complications. Without disparaging the care the patient received overseas, the surgeon must explain the current situation, potential complexity, and inherent difficulties clearly.

Salvage surgery may require additional time because the implants and the technical performance of the previous surgery may be atypical to American norms. Arthroplasty surgeons should have a wide variety of implants available to correct whatever deficiencies they encounter. Implanted screws and other devices may be difficult to remove, and the correct explant instrumentation may not be available, requiring the orthopaedic surgeon to improvise when necessary. A lengthy discussion with the patient about the risks and benefits of salvage surgery must occur to improve the patient’s outcome and reduce the risk of liability.

If you have had any experience with the medicolegal ramifications of medical tourism, consider sharing them. Send your comments to lundydw@resurgens.com and watch for a follow-up article in AAOS Now.

Douglas W. Lundy, MD, is a member of the AAOS Medical Liability Committee and editor of the Orthopaedic Risk Manager articles in AAOS Now. He can be reached at lundydw@resurgens.com

Disclosure information for Dr. Lundy can be found online at www.aaos.org/disclosure

AAOS Now
February 2008 Issue
http://www.aaos.org/news/aaosnow/feb08/managing7.asp