Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism

By Mirrer-Singer, Philip | Law and Contemporary Problems, Spring 2007 | Go to article overview

Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism


Mirrer-Singer, Philip, Law and Contemporary Problems


I

INTRODUCTION

Recently, waves of people from developed countries have been traveling to places like India, Brazil, Thailand, and Malaysia for medical procedures ranging from face lifts to knee replacements to cardiac bypass surgery. (1) Cities in these countries have opened up private hospitals that cater specifically to foreigners and that are often staffed by Western-trained physicians. (2) These hospitals charge patients a fraction of what they would pay for similar services in the West and, in some cases, offer procedures that have yet to be approved in developed countries. (3)

This latest form of outsourcing is called "medical tourism," and industry experts believe it has the potential to bring over $2 billion a year to India alone by 2012. (4) The demand for medical tourism is not surprising, given that millions of Americans remain uninsured and that citizens needing medical attention in Western European countries face long waiting periods. In the United States, private firms have begun to reap some of the profits of this budding business by offering prospective medical tourists all-inclusive packages in which a hospital stay in an exotic location is built around trips to the Taj Mahal or sandy beaches. (5) In the United Kingdom, the National Health Service may even subcontract patient cases to India. (6)

Even though medical tourism has received an increasing amount of attention from the media, there has been remarkably little commentary about medical tourists who have fallen victim to medical malpractice abroad. For these unlucky patients, a website for India's largest medical-tourism hospital, Apollo, presents a grim message: "A prospective medical tourist should also be aware of possible legal issues. There is presently no international legal regulation of medical tourism. All medical procedures have an element of risk. The issue of legal recourse for unsatisfactory treatment across international boundaries is a legally undefined issue at present." (7)

This article explores some of the legal uncertainty surrounding medical tourism--specifically, ways medical tourists can seek relief in U.S. courts for malpractice committed abroad. It concludes, however, that medical tourists face substantial hurdles in obtaining such relief.

Part II explains why courts probably lack jurisdiction over foreign physicians who have allegedly committed malpractice and discusses theories under which U.S. firms in the medical-tourism business could be held liable for the foreign provider's negligence. Part III discusses additional barriers to malpractice actions against firms, such as forum non conveniens and conflict-of-law issues. Part IV presents the arguments for and against holding firms vicariously liable for the negligence of foreign providers. The article concludes by noting that legislation may be necessary to deal with the complex policy issues medical tourism presents.

II

OPTIONS FOR LEGAL RECOURSE: WHOM To SUE, WHAT THEORY?

A. Suing the Foreign Provider: The Personal Jurisdiction Problem

If a medical-tourism plaintiff brought an action against her overseas provider in the United States, she would need to convince the court where she filed suit that it had personal jurisdiction over the nonresident defendant. The personal jurisdiction requirement may prove to be problematic for medical-tourism plaintiffs. Courts are generally reluctant to assert jurisdiction over physicians who neither reside nor practice in the state where the court sits (the forum state). (8) The traditional notion that physicians have a "localized practice" remains pervasive and consequently courts often find that nonresident physicians do not intend for their services to have an impact beyond the state in which they practice. (9)

1. Jurisdiction over Foreign Physicians Based on Their Transacting Business Within the Forum State

One way a medical-tourism plaintiff might try to overcome the personal jurisdictional hurdle is to sue in a state where the foreign provider does business. …

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