Hazards to look for in medical tourism
Medical tourism is no holiday for doctors in private practice. Lawyers Lauren Halliday, Elena Goodfellow and Hannah O’Brien tackle a big topic that’s been hitting the news and give practical tips to consider when providing services both at home and abroad.
Medical tourism is increasing for various reasons.
While low-cost treatment and the lure of exotic destinations has always been an attraction, in a post-Covid world, the efficiency of treatment abroad is a decisive factor for patients whose treatment is a necessity rather than purely cosmetic.
Countries such as Singapore, Thailand, Malaysia, India and Turkey have all announced policies and government schemes to increase the number of internationals travelling for treatment, which helps to boost economic growth.
The latter, for example, has established tax-free healthcare zones and is implementing regulatory bodies to help bolster its reputation as an important global medical hub.
However, despite this progression, reports of deaths and near-misses abroad continue to crop up in the press.
As we are lawyers, our thoughts naturally veer towards the complexities of dealing with cross-border litigation, particularly when independent practitioners practise both abroad and in the UK.
Seminal legal case
A few recent cases have provided guidance and authority on where contractual liability and liability in tort – that is to say, negligence – may lie where treatment is provided by clinicians through multi-party arrangements.
In the case of Clarke v Kalecinski, a woman brought claims for negligence and in contract for damages against the surgeon, the clinic and the insurer of the clinic for personal injury arising from a cosmetic procedure performed in Poland.
The parties agreed that English law applied to the contract and Polish law to the claim in tort.
Contract in place
It was held that there was a contract between the surgeon, claimant and the clinic, despite arguments that the clinic held no contractual responsibilities.
References to ‘our team’ on the website suggested care would be provided by other staff members such as nurses and other doctors, rendering the clinic and surgeon jointly liable.
The judge decided that evidence of local standards of care was unnecessary because there was an implied term in the contract that the surgeon would operate to the standard of a UK surgeon through representations on his website as to his qualifications and experience.
Surgeon’s liability
By comparison, in the case of Geraint Mabey v Mr Kulkarni and St Joseph’s Hospital, Newport, Gwent, it was held that a surgeon was an independent contractor of a hospital rather than an employee, placing liability solely on the surgeon.
The judge took into account the fact that he was not paid wages, there was no employment contract, he did his own tax and insurance and was in control of his hours and the number of patients he saw.
Only the surgeon owed the claimant a non-delegable duty of care and the hospital was not contractually liable, as the contract explicitly stated it was not responsible for the provision of the surgeon’s services.
These cases appear to be at odds in terms of determining where liability will lie between a health provider and the individual clinician.
What is clear, however, is that cases will turn on their facts, which makes it more important than ever for independent practitioners to have well-drafted contracts in place, both with clinics and patients.
Check out our practical tips you may want to consider when providing services both at home and abroad (see box to the right).
Lots of uncertainties
These pointers will hopefully help you as medical professionals consider the various issues you may face when seeking opportunities to work abroad and indeed when faced with patients who are considering or who have chosen to partake in medical tourism.
As can be seen, though, there are a lot of uncertainties arising from cross-border care and, with medical tourism on the rise, we suspect more cases are likely to end up in court.
As always, we would recommend seeking legal advice and also liaising with your medical defence provider to ensure you are best protected against complaints and, ultimately, claims.
Lauren Halliday (left) is a partner in the health and care team at Bevan Brittan LLP. She specialises in defendant clinical negligence and medical malpractice, working with both public and private providers and clinicians.
Elena Goodfellow (right), a senior associate solicitor in the team, advises both public and private sector clients in a variety of clinical negligence claims. She has acted for both independent practitioners and clinics/practices in claims concerning cosmetic, ophthalmic and orthopaedic surgery.
Hannah O’Brien (left) is a trainee at Bevan Brittan LLP