89 Pages Posted: 24 Jun 2009 Last revised: 28 Feb 2011
Date Written: June 24, 2009
The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This finding is important because patients are frequently asked to waive any legal claims they might assert in U.S. courts, thus outsourcing not only the surgery, but the legal remedies as well. In fact, medical tourists are simply told not to travel overseas if they are at all concerned about their potential legal remedies. Given these findings, I suggest several ways we might reallocate the legal risks of cross-border health care so they do not fall squarely on patients. I scrutinize private sector responses to this imbalance and suggest ways the public sector can help mitigate it.
Keywords: health, international health, medical tourism, international, cross-border, torts, medical malpractice, India, Thailand, Singapore, Mexico
Suggested Citation: Suggested Citation
Cortez, Nathan, Recalibrating the Legal Risks of Cross-Border Health Care (June 24, 2009). Yale Journal of Health Policy, Law, and Ethics, Vol. 10, No. 1, 2010; SMU Dedman School of Law Legal Studies Research Paper No. 74. Available at SSRN: https://ssrn.com/abstract=1424788