Medical Tourism in Developing Countries

Promoting Medical Tourism ● 157The dynamic changes entirely if the patient is being sent abroad by aninsurance company. Were a U.S.-insured patient to seek medical attentionabroad at the direction of her insurance company, depending on the natureof the agreement and the contractual relationship between patient andinsurance company, she could potentially have a claim against the insurancecompany. Either way, once a patient is sent abroad at the behest of anAmerican insurer, the patient would pursue the resolution of any problemthrough that insurer, and would not be forced to pursue legal recoursewithin the foreign jurisdiction. Given the record surpluses amassed bythe top 15 U.S. medical malpractice insurers during 2000–2004, this raisesthe question of what would happen to profits if they extended their insuranceto cover foreign suppliers. 74In reality, a compromise solution is sought. United Group Programs, anadministrator of self-funded medical plans and mini-medical plans based inBoca Raton, Florida, seeks to limit its liabilities in the following way.It offers a medical tourism incentive: it waives the deductible, often severalthousand dollars, for patients who seek treatment overseas. 75 It also paysthe patient’s airfare as well as that of a companion. However, greater reimbursementswould open up the employer and insurer to liability, despite thewaivers patients sign. Also, MedRetreats, an American company that pairspatients with hospitals, seeks to limit liabilities with broad customer waiversplus an umbrella liability policy it hopes will keep litigation in check. 76Finally, Harvard University has managed to be integrally involved in thedevelopment and research at Dubai Healthcare City but it has avoidedpotential liability for medical procedures by limiting its role to education,research, and consulting. 77The legal considerations that pertain to international trade in medicalservices must reflect the integration of two sets of domestic laws (those ofthe source and destination countries), as well as relevant international law.With respect to the source country, differences in propensity for generallitigation are relevant for both the demander and supplier (for example,medical products and processes are on sale in Asia, Europe, and LatinAmerica long before they are in the United States because in those countries,as El Feki points out, “regulators and companies are less fearful oflitigation than companies in the United States” 78 ). All of these issues arebrought to bear on questions raised by potential patients: what legalrecourse do I have after bad medical care, botched plastic surgery, unsuccessfulstent insertions? What if patients are given locally produced drugseven if imported ones are more effective? Do people get enough good adviceand information before surgery, and should there be someone who overseesthat the advice is adequate? Who is responsible if complications arise with