I. Glenn Cohen, Assistant Professor at Harvard Law School, and Gregory W. Moore, leader of the healthcare practice group at the US law firm Clark Hill PLC, provide a legal perspective on medical tourism in the US, in an interview with Caroline Ratner of IMTJ. A new classification of medical tourism – “circumvention tourism” is introduced.
How are you involved in medical tourism?
Greg Moore: I consult with insurance companies who are developing insurance products and I am working with them on contractual and liability issues. I also work with facilitation companies who are addressing liabilities and concerns related to medical tourism.
Glenn Cohen: I’ve done work on medical malpractice, care quality, insurance regulation, the effects of medical tourism on the access to health care in the destination country, and am in the midst of new work on what I call “circumvention tourism” the use of medical travel to avoid domestic prohibitions on abortion, IVF, assisted suicide, surrogacy, stem cell treatment, drug trials etc.
What are the legal issues for people travelling for “circumvention tourism”, either in their home country or abroad?
Glenn Cohen: It is a matter of international law that you can make criminal the activities of citizens abroad , so facilitation companies and patients travelling for these types of treatments need to be aware of these facts. For example, the US is already a big destination for reproductive technology with patients who come from countries, like Turkey, that have a ban on using IVF. Turkish citizens that have IVF overseas can face up to five years imprisonment on their return to Turkey and the Turkish government has specified that this law applies domestically and extra territorially.
Other examples include experimental therapy tourism, like stem cell therapy and people travelling for drug trials and also those that receive drugs that haven’t yet been approved in their home country.
Another potentially difficult issue is with surrogacy and citizenship in both Japan and France and maybe other countries. So if parents travel to say, India for a surrogate and take the Indian mother home to France or Japan with them to give birth, whilst not making it illegal for a surrogate to give birth, these two countries have tried to deny citizenship of the baby born to an Indian surrogate, in order to make rules about parentage.
What are some of the potential and current medical tourism legal issues in the USA?
Greg Moore: Liability is a big issue, US citizens are overly concerned about liability issues, and understanding those issues is critical. I mostly advise on messaging to target populations, so that facilitators understand liability concerns and messaging those concerns to purchasers, whether the providers have enough ties in the US to be sued in the US, whether certain countries will be preferred by US citizens to recover and take legal action if someone will go wrong.
These concerns are being addressed and what we are seeing developing in the industry are insurance products that address this concern. There are travel insurance policies with add ons that address medical liability issues. These add on products can override the overseas clinics waivers that say that clients cannot sue after treatment abroad.
Glenn Cohen: Hot topics at the moment in the US are about liability and recovery for liability and in particular in relationship to and also separate from the potential design of medical tourism in relation to health insurance plans, and insurance plans for medical tourism.
However the main questions are whether there will be a legal regime that currently covers medical tourism, whether by accident or design. Currently some states, specifically, California and Texas already have strict rules in place because they both border Mexico where cheaper healthcare, medicine and diagnostics are easily available.
In Texas they have made it law that if you are an insurer you basically can’t require a consent to any medical tourism. This means that an insurer can’t incentivise its customers to travel for cheaper treatment, so you can’t cover it or require it as part of the insurance coverage and you can’t give premium rebate or cost saving. This is partly a result of lobbying from domestic doctors who are worried about cross border trade with Mexico eating into their profits.
At the other extreme California appear to be encouraging medical tourism and have temporarily authorised some of these insurance products. In the rest of the US, many states are currently relatively negative towards medical tourism. Many HMOs (Health Maintenance Organisations) and PPOs (Preferred Provider Organisations) have a number of regulations and rules in place about whether you are and aren’t covered and many plans make it difficult to introduce medical tourism products.
How do you think the new US Healthcare Bill will impact on medical tourism?
Glenn Cohen: At the moment it is all pretty tricky and speculative as regards the impact on medical travel but what will happen is that by 2019 probably half of those currently uninsured will have health insurance of some sort that satisfies the mandate which may or may not have an effect on medical tourism. The issue vis a vis medical tourism is what kind of insurance products will comply. There is nothing in the statue so far that says that you can’t use medical tourism to reach the mandate requirements, which means that at the moment people may be allowed to use medical insurance products to reach the mandate. This may include medical travel options, however the bill has not been ratified yet so, as I said it is all speculative and no one really knows yet.
We also don’t know what’s going to happen with competionality of healthcare reform. More people may be interested in medical travel but alternatively some Americans currently using it as a cheaper healthcare option because they were underinsured and uninsured might not need to once the healthcare bill is ratified and they are required to have healthcare insurance. The amount of people paying for themselves is likely to shrink as they will be paying for healthcare insurance domestically and will use domestic products as part of their insurance package.
Greg Moore: I foresee access to treatment as a problem in the US as the healthcare reforms will put a huge amount of pressure on access. Adding 40m to insurance rolls means that these people will have access to a wider range of services that is currently being offered under US health insurance products. This will inevitably have an impact on the volume and need, and the demand will far exceed the supply in the US. As a result impatient Americans are going to turn to other markets for their healthcare and to pre-empt this more and more private insurance companies are investigating medical tourism products, including companies like Blue Cross and Blue Shield and WellPoint, the largest private insurer in the US, has been conducting a three year pilot product into the feasibility of medical travel.
Do you think insurance companies will use facilitators to send patients abroad or do you think that they’ll send patients directly?
Greg Moore: I believe that if facilitation companies can provide data about accreditation, patient satisfaction, medical outcomes etc then they’ll have a leg up to establish themselves with insurance companies.
Are you seeing a growth in law suits in the US courts of people returning from abroad against foreign suppliers?
Glenn Cohen: A little bit, we only see cases that are reported. One case - someone treated in Canada - but it was very atypical of medical tourism. So far there have been very few by Americans.
Greg Moore: I’m not aware of medical negligence arising out medical tourism at the moment.
What kind of legal risks are facilitators taking – could they be held responsible and at risk from litigation and what can they do to protect themselves?
Greg Moore: Foreign providers probably won’t be sued in the US courts because they don’t have the contacts or connections enough for a US court to gain jurisdiction over them. That’s where the medical facilitation company comes into play and they need to protect themselves because they could be liable because they are the buffer between the provider and the client base in the US.
The individual travellers won’t know to protect themselves when they organise their own trips. Facilitators that develop networks of providers that maintain some database of outcomes and quality and patient satisfaction will become the source of that data and information for the traveller.
Glenn Cohen: I always tell doctors who do follow up care on medical tourism patients that if you get a patient who suffers a medical error and the person is beyond their reach it is standard practice to go after everyone in the supply chain and as a result, the facilitation company could be at risk. Many foreign hospitals have intermediaries in the US, but it is not direct medical practice. There is no case law to say whether facilitators are going to be treated like an insurance company and if there is litigation the courts might be more inclined to be more generous towards them. I tell facilitators to build records in the way they select foreign physicians.
JCI accreditation is probably going to be helpful if you get sued, but you want to go beyond that and if information comes to you that a doctor has a problem you should have qualms, and facilitators should follow a robust duty of enquiry on behalf of their patients and to protect themselves.
Date published: 18 February 2011
Comments provided below do not represent the views of IMTJ. Comments will be published "as is" and will not be edited by IMTJ staff. IMTJ is hosting these comments, and is not undertaking an editorial role in the content of these comments. However, it is editorial policy not to publish comments which have been submitted anonymously.