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Medical Tourism and the Law

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Medical Tourism and the Law

Medical Tourism and the Law
Term paper
The healthcare industry is transforming thanks to the movement of patients from their
countries to others in the search for advanced therapy. Some travel to cut the cost of treatment at
home. Although cost-related reasons make medical tourism popular, the lack of legal basis and
regulations present patients with a more complex legal issue. For example, healthcare-seekers
risk medical malpractice in the host country with limited access to justice. In most nations,
citizens receive priority compared to foreigners. Although the establishment of the jurisdiction in
the U.S. courts is a possibility, the complainants face difficulties in areas of treaty agreements,
acceptance of rulings in the host nation, and established legal principles including the
inconvenient forum.
Medical Malpractice
In medicine, malpractice occurs when a professional or provider fails to take the right
course of action, offers inappropriate treatment, or skips an important procedure causing harm,
injury, or death of a client. Such actions constitute medical flaws which could be in areas such as
dosage, treatment, health management diagnosis, or aftercare. Other forms include premature
discharge of patients, ignorance of the client’s medical history, or performing surgery on the
wrong sites. It is estimated that nearly 250,000 people die from medical mistakes in a year,
contributing to the 43 million instances recorded worldwide (Villalobos et al., 2021). These
medical malpractices culminate in falls, tissue damage, blood clots, infections, and bedsores.
This explains why in the recent past, the number of complaints reported every year has been
rising. Besides, many individuals appreciate the need for patients’ protection by the law.
With time, the concept is widening to cover healthcare facilities in which such
professionals work. The aim is to encourage all hospitals to ensure all their workers are
accountable. Since healthcare facilities are publicly or privately run, the government and public
have to ensure they meet the standards set (Bal, 2009). As commonly known, healthcare
facilities face tougher punishments that include deregistration. The public is significant in
reporting culprits. The government then takes actions, prompting healthcare facilities to be
responsible when handling patients. In some instances, they are compelled to compensate
patients who are adversely affected by the wrong procedure.
Numerous cases involving medical negligence resulted in licenses being revoked.
According to Burkett (2007), a facility might face this tough decision when the issue recurs and
no measure has been taken to address it. Many organizations in the healthcare industry consider
caregiver’s education, experience, and training. The individuals must be licensed by relevant
bodies. Actions, such as revocation of licenses, are taken against hospitals that fail to observe
recruitment guidelines.
Apart from the recruitment process, hospitals are now required to ensure healthcare
givers have the resources required to deliver quality services. Some experts fail to follow the
correct procedure because of a deficit in resources and personnel. The facilities are held liable for
any injuries or damage created by the staff. The U.S. constitution has several laws protecting
patients against medical malpractice. The Emergency Treatment and Active Labor Act
(EMTALA) requires health professionals to offer medical services to patients despite their
socio-economic status (Zibulewsky, 2001). The law took effect in 1986 to stop the discrimination
that led to negligence. It requires caregivers to stabilize patients, and when impossible, they
should transfer the healthcare stakeholder to a more capable facility. Secondly, the Stark Law
forbids caregiver from referring the patient to relatives in Medicare (Butler, 2016). It protects
healthcare clients from negligence and prevents hospitals from referring them to individuals with
“financial relationships.” Third, the Anti-Kickback Statute prevents caregivers or healthcare
facilities from soliciting assets belonging to patients to cover for subsidized medical patronage
(Pearson et al, 2017). However, the law requires the prosecutor to collect sufficient evidence
linking the perpetrator to the unlawful act. These laws are limited by the application within the
area of jurisdiction. Therefore, medical malpractice continues to occur when individuals seek
medical care in other nations. In such cases, organizations and individuals cannot be compelled
to take responsibility by the law in the country of origin of the individual affected.
Incentives for Americans to Seek Medical Care in Other Nations
Medical care in America is one of the best in the world. However, many natives and
immigrants in America seek international surgery in other nations. Several reasons contribute to
this trend, ranging from the cost of procedures in the U.S. to seeking services unavailable at
home (Pearson et al, 2017). Even though some have unplanned surgery out of unexpected
illnesses, many medical tourists consider treatment incentives in a different nation. The benefits
have made medical tourism popular among most Americans.
One of the incentives that draw Americans to seek medical care in other nations is
cost-effective procedures. Technology in the United States has for decades been advancing,
making treatments more efficient. However, the advances have elevated the cost incurred by
patients for healthcare services. On average, Americans spend $1,122 for treatments per year,
including doctor’s visits and medication or contribution to the health insurance (Béland &
Zarzeczny, 2018). The amount is five times what Canadian citizens pay for the same service.
Other nations whose residents spend less include France, New Zealand, Australia, and the U.K.
A different way to compare the U.S. healthcare system is through the outcome. The U.S.
residents’ healthcare outcomes are worse than their counterparts in other regions. For instance,
the life expectancy of a U.S. newborn is estimated to be 78.6 years in the United States (Béland
& Zarzeczny, 2018). This is five years lower than Switzerland and two years less than the OECD
average. In the era of technology, Americans can research the efficiency and cost-effectiveness
of healthcare systems. Given that they look for opportunities to save, the U.S. residents travel to
their chosen countries. This trend will be sustained if citizens perceive they will get such
The second reason that encourages individuals to seek medications overseas is
high-quality medical service. While it is expected that the amount of money one pays should
correspond with the quality of service, this only remains a myth in the U.S. Across the state
doctors are busy with numerous patients. The workload affects the quality of service they offer
clients. It is notable that most nations with the best quality of healthcare have lighter workloads
(Pearson et al, 2017). This prompts them to have a one-on-one discussion with patients, resulting
in better care. The continent of Asia has hospitals with a high number of well-trained healthcare
professionals. Besides, they are paid less than what an average practitioner receives in the United
States. The minimum wage as provided by the local, federal, or state laws, increases the wage
bill. Health Practitioners’ wage ranges from $81 to $125 per hour (Zolfagharian et al., 2018).
With a high minimum wage for the physicians, the U.S. government is unable to employ more
workers in the healthcare system. The patient-doctor conversation is limited, leading to
dwindling quality of services. Patients who seek healthcare in many Asian nations are assured of
maximum attention (Pearson et al, 2017). Most renowned hospitals in the world depend on best
quality services for international marketing. Therefore, they ensure clients’ satisfaction gets
priority. Patients in the U.S. are conscious of the quality, prompting them to seek medication in
other nations.
Apart from quality, the availability of certain services is a contributing factor to an
exodus of American patients. In the U.S., some patients may be required to wait for days, weeks,
or months to access specific healthcare services. The issue is exacerbated by the lengthy
procedure requiring the operation or therapy to be approved. It is agonizing for patients in need
of care to wait for the process to be complete (Davison et al., 2018). They opt to board a plane
since the medical service is just a few hours away. While abroad, patients from other nations
receive priority because of their decision to be treated away from home. In other words, if a
medical condition is not approved by the Food and Drugs Administration (FDA), the patient is
likely to suffer (Zolfagharian et al., 2018). Therefore, the only option is medical tourism. For
instance, if FDA refused to approve hip or stem cell resurfacing, then the condition in question
cannot be treated in the U.S. The patient reaches the dead-end as far as the treatment in the
nation is concerned. However, all is not lost since other countries are ready to welcome clients of
whatever origin. Since no patient is willing to lose life out of the reluctance of the regulatory
body to approve the medical procedure, medical tourism becomes an option.
Travel opportunities are another incentive American patients receive from seeking
medication in a different nation. Awaiting a medical procedure is usually a moment of
uncertainties and confusion. One way to rid oneself of these difficulties is through traveling. For
some patients, it is just more of traveling than getting treatment. This reduces the tension
experienced when awaiting the agonizing moment between life and death. Medical tourists
recuperate through the enjoyment of meals, beaches, and serene environments in the host nations
(Pearson et al, 2017). Visitation to beautiful countries with ideal medical services can be
therapeutic to patients undergoing wellness treatment and cosmetic surgery. Such benefits make
medical tourism a popular option among many U.S. residents.
Personal Jurisdiction in Medical Tourism Cases
Medical tourism has proven for many years to be beneficial to patients seeking various
medical procedures. However, traveling to other nations for medical reasons faces several
medical and legal issues. Patients confront poor surgery contrary to their expectations. Some are
neglected when the treatment becomes unsuccessful. Such issues are more legal than medical.
The patient can file a lawsuit in a quest to complain about breach of rights. In the recent past, the
number of court cases involving practitioners in the host nations neglecting victims has gradually
Victims of unethical practices by a healthcare practitioner abroad meet hurdles in an
attempt to obtain jurisdiction over the accused. For instance, Davison et al. (2018) surmise that
the complainant must show that the subject matter in question is within the area of jurisdiction of
the court. The plaintiff must confirm to the court that it has the power to prosecute the
international defendant. Majorly courts in the United States, similar to other nations, have
guidelines on when they have the power to prosecute. The five doctrines include territorial,
nationality, protective, passive personality, and universality principles. The personality principle
covers the personal jurisdiction defining the court’s power in making a judgment regarding the
party. The foreign defendant must have a connection with the state in which the court hearing is
to be held. The court considers factors such as the cost of transporting witnesses and the location
of the plaintiff and defendant. In Jeha v. Arabian American Oil Co. (1990), the court dismissed
the suit on the basis of the high cost of importing key witnesses. The court also argued that
transporting the doctors who had allegedly neglected patients would be time wastage. The
plaintiff was denied access to justice. In a similar case, in Chadwick v. Arabian American Oil Co
(1987), the court rejected the possibility of personal jurisdiction. Apparently, the accused had
misdiagnosed Chadwick, leading to the deterioration of his health. When the plaintiff filed a suit,
the company requested a stay discovery pending determination of the truth. It was also
established that the case was only applicable under Saudi Law. Besides, judges confirmed that
the plaintiff did not state the claim. The court denied justice to the victim, suggesting that he was
not employed by ARAMCO but Lummus.
The other case that involved medical tourism was Tammy Gatte et al. v. Judy Dohm, et
al. (2014). It emerged that the plaintiff (representative for the diseased) illegally induced the
defendant to correct a procedural mistake. Personal jurisdiction requires that the accused should
be present on the panel to listen to the accusations. Regarding whether the court had personal
jurisdiction over the accused, the court was reluctant to answer. It cited possible fraudulent
induction of the offender. The evidence was tampered with by the Dohm, complicating the
investigation. In Bhatnagar v. Surrendra Overseas Ltd, the accused had purportedly caused injury
to a child identified as Bhatnagar. The ship steward had ignored the rules that prohibit non-staff
individuals from getting to “off limit” areas. The complainant filed a lawsuit in the District Court
located in New York. In this case, the court managed to judge based on the fact that the ship was
on high waters. The complainants claimed that the company shipping company neglected the
medical care of the girl. As a result of the damage caused, Bhatnagar was awarded $189,331.00.
It was a rare case of justice being served to a victim of medical negligence.
Legal Implications of Medical Tourism
With medical tourism becoming popular by the day, safety in caregiving is receiving a
legal boost. This occurs in the era of an increase in medical malpractices. Most medical tourists
are unaware of the potential risk of the practice. Due to limited regulations in the industry, many
clients are lured into unsafe procedures. The outcomes are death, destruction of organs, or
patients contracting other diseases. Medical traveling, therefore, has numerous legal
Healthcare seekers in other nations have rights regardless of whether they are aware or
not. First, clients visiting for such services should be allowed to select their chosen country to
ensure they have access to better medical care. It is the responsibility of doctors to do a
follow-up on their clients to know their progress. In addition to seeking responsive care, patients
require a review of knowledgeable providers in the host nation to reduce the chances of medical
malpractice. Secondly, the rule of law requires hospitals to supply patients with the information
they need. This includes estimates of charges, professional status and identity of caregivers,
patients’ current health condition, medical prescription, and fully filled medical records. Some
medical tourism caregivers fail to provide such information, particularly when malpractice has
occurred, to protect their professional reputation. Thirdly, healthcare experts should ensure
patient’s privacy is protected (Pearson et al, 2017). Whether in written or electronic forms,
patients’ records should not be accessed by others. The client’s genetic information, religion,
sexual orientation, marital status, income, medical history, race, color, and others should be kept
confidential. During cross-examination, only relevant individuals should be allowed in the room
intended for the stated use.
Aware of their rights and risks they are bound to face, medical tourists, being the main
stakeholder of medical procedures, have to consent. However, in the process of giving consent,
information displayed on websites can be incomplete or ambiguous. The law requires that the
caregiver should write the document in the patient’s primary language (Davison et al., 2018).
Translation ensures that the client understands what is involved in the medical procedure. An
informed decision is synonymous with access to a high level of confidence in the medical
service. It also benefits professionals in that it reduces unnecessary legal consequences. This
includes monetary losses and deregistration of health experts. Such legal implications improve
the quality of care. An example of financial loss was evident in the Bhatnagar v. Surrendra
Overseas Ltd case, where the accused paid a lot of money for medical negligence.
Contract Waivers
Medical procedures cannot be performed by practitioners without a patient signing a
document outlining all the rights regarding the care. The document lays bare that the client
cannot, under certain situations file a suit against the surgery provider. It protects medical
tourism doctors against malpractice laws. They are prompted to offer services at a greatly
reduced price since they are not liable for any risk that is likely to occur in a medical procedure
(Steklof, 2010). When patients refuse to sign away the rights to sue, health experts terminate the
cooperation. The patient continues suffering from a severe health condition

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