Baigent, Louis; Vallance, Sarah --- "Medical tourism: Problems and potential avenues for recourse" [2021] PrecedentAULA 17; (2021) 163 Precedent 13

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MEDICAL TOURISM

PROBLEMS AND POTENTIAL AVENUES FOR RECOURSE

By Louis Baigent and Sarah Vallance

While individuals have travelled to foreign locations for treatments and therapies with perceived health benefits for hundreds of years, it is only in recent decades that people have sought to combine medical treatment with an overseas holiday.^[1]

This phenomenon, commonly known as ‘medical tourism’, has seen rapidly increasing numbers of patients from high-income countries travelling to lower-middle- and upper-middle-income countries for surgeries and other procedures.^[2] The major services marketed towards medical tourists include cosmetic surgery, dental procedures, cardiac and orthopaedic surgery, bariatric surgery, IVF treatment and organ transplantation.^[3]

In 2020, the global medical tourism market was valued at USD 10.1 billion. While the COVID-19 pandemic and consequent closure of international borders has undoubtedly had a significant impact, the industry is nevertheless forecasted to reach a value of more than USD 37 billion by 2027.^[4]

There are a number of drivers of medical tourism. In terms of cosmetic surgery – which accounts for approximately 17 per cent of the global medical tourism market share^[5] – the comparatively lower cost of treatment in certain countries is reported to be the main influencer of decisions to travel abroad.^[6] However, for other types of elective procedures that are actually covered by the Australian public health system, individuals may be seeking treatment elsewhere in order to avoid lengthy waiting periods.

For those patients who undergo successful treatment without any complications, the benefits of medical tourism are potentially numerous. Outside of the significant cost savings, the ability to engage with overseas healthcare providers can allow individuals access to timely treatment which they might not be able to access in Australia. However, there are also considerable risks involved in seeking treatment in lower-middle- or upper-middle-income countries, including:

• exposure to lower standards of surgical skills, procedures and care than what would ordinarily be expected in Australia;

• exposure to bacteria and infectious diseases not present in Australia;

• inadequate advice and information regarding the risks of treatment; and

• a lack of post-operative follow-up in circumstances where patients leave the destination country within days of their procedure.^[7]

Concerns around public safety have been widely publicised by the Australian Medical Association,^[8] the Royal Australian College of General Practitioners^[9] and the Royal Australasian College of Surgeons.^[10] However, there tends to be far less public awareness of the potential obstacles faced by patients who wish to seek legal recourse after suffering an adverse outcome from medical treatments administered overseas.

This article will seek to highlight some of those obstacles under two broad sections. The first section will discuss the challenges of pursuing civil claims directly against overseas healthcare providers, and the second section will focus on the difficulties of pursuing local intermediaries or ‘facilitators’ responsible for arranging overseas medical holidays.

CLAIMS AGAINST OVERSEAS PROVIDERS

In Australia, patients who suffer an injury following substandard treatment can pursue a claim for compensation against the doctor or medical facility involved. As it is compulsory for medical practitioners to have insurance, it is usually a straightforward process for injured persons to receive compensation after a settlement agreement has been reached or after a verdict has been made in favour of the injured person. The same cannot necessarily be said for claims arising out of treatment in another country.

Two distinct issues arise when attempting to bring legal action against a foreign entity or doctor, namely: the appropriate jurisdiction in which to decide the case; and the substantive law governing the case.

Choice of jurisdiction

It can be problematic for a number of reasons to commence proceedings in the country in which the medical services were provided. Even in rare circumstances where the country’s system of law is broadly comparable to that in Australia, the process is likely to be made considerably more burdensome by the need to travel to participate in the legal process. It is likely that the patient will also need to engage local lawyers, as well as interpreters and translators in non-English speaking countries where court proceedings are carried out and documents are written in the native language.

As such, it may be preferable from a logistical standpoint for plaintiffs to seek to litigate the matter in an Australian court. However this can also be fraught with difficulty, as such an action is open to challenge by the overseas defendant on grounds of forum non conveniens. Practically speaking, this means that if the defendant can demonstrate that the jurisdiction in question is a ‘clearly inappropriate forum for the determination of the dispute’,^[11] the proceeding as a whole will be stayed.

Even if an overseas forum is considerably more appropriate in the circumstances, it does not automatically follow that an Australian court is clearly inappropriate. However, it is unlikely that Australian courts will agree to exercise their jurisdiction over a matter simply because the injured person resides in Australia. It is highly improbable that the matter will be heard in Australia if:

• the relevant acts or omissions were committed in an overseas country;

• the professional standards of the overseas country are relevant to determining liability;

• all or most of the damage was sustained in the overseas country;

• the action itself has a substantial connection with the laws of the overseas country; and

• the vast majority of witnesses and evidence are located in the overseas country.^[12]

It is also quite possible that, if an injured patient has entered into a formal agreement for the provision of medical services overseas, the agreement itself will stipulate the forum for any legal disputes.

Even in circumstances where an injured patient is able to pursue their claim in Australia and obtain an award of damages in their favour, there is no guarantee that they will be able to enforce the judgment in the defendant’s home country. Enforcement may be particularly problematic in countries where medical tourism is heavily marketed and relied upon as a key source of foreign income, as courts will be less likely to recognise and uphold unfavourable judgments which have the potential to cause damage to the industry.^[13]

Choice of law

Regardless of forum, the law which governs the dispute will undoubtedly have the greatest bearing on the outcome. While choice of law rules vary between jurisdictions, many countries, including Australia, follow the principle of lex loci delicti commissi – the governing law is the law of the place where the tort was committed.^[14] In cases arising from medical tourism, this will almost invariably be the location where the patient received treatment or underwent their procedure. Typically, the lower cost procedures sought by medical tourists are offered in lower-middle- and upper-middle-income countries whose civil laws and compensation schemes are rarely comparable to those in Australia. Globally, the most popular destinations for patients include Thailand, India, Malaysia, Singapore and Mexico.^[15]

In India, for instance, the legal and regulatory systems have been described as ‘not comprehensive or mature like those of western countries’.^[16] While damages awards are technically available, some 95 per cent of cases are dismissed and, in view of the limited compensation likely to be recovered, ‘the amount of litigation expenses may total more than any potential recovery, making the suit not economically viable’.^[17]

It has been said that in Thailand, laws limit awards for compensation and do not compensate for pain and suffering.^[18] Other popular destinations such as Malaysia and Singapore have also been criticised as being too deferential towards doctors in determining the standard of care and whether that standard has been breached.^[19]

Injured patients are likely to encounter great difficulty in navigating these legal frameworks and may even find that seeking recourse against their overseas medical provider is ultimately futile.

CLAIMS AGAINST MEDICAL TOURISM FACILITATORS

It is often the case that prospective patients will engage the services of a third-party facilitator to organise their medical holiday.

The role of medical tourism facilitators in Australia is evolving, with some facilitators advertising medical services but limiting the scope of their involvement to the booking of flights, accommodation, and appointments with doctors and/or medical facilities. At the other end of the spectrum, facilitators may play an active role in communicating with doctors and/or medical facilities, facilitating communication between doctors in Australia and overseas, and coordinating ongoing care following a patient’s return home.

For those patients who go on to receive substandard treatment overseas, there are obvious benefits to pursuing the local intermediary rather than the foreign healthcare provider. The legal process is likely to be far less cumbersome for injured persons, who are able to avoid the jurisdictional and choice of law issues that arise in actions against overseas defendants. However this is not to say that claims against facilitators are without issues, with patients likely to encounter both legal and practical difficulties.

Legal complexities

A number of possible causes of action may exist against facilitators of overseas medical treatment, however the scope of their liability is yet to be tested in Australian courts.

As the facilitator does not provide direct medical services, the only way in which they can be found liable for the wrongful acts of overseas providers is through the doctrine of vicarious liability. While Australian courts have not yet been tasked with deciding this issue, it is difficult to imagine a situation in which they would be prepared to find that a facilitator is vicariously liable for the conduct of a foreign doctor or facility.

While some facilitators may be heavily involved in sourcing overseas treatment providers, they do not employ those providers or have any influence over the treatment itself. Given that the overseas provider does not derive wages from the facilitator, treats patients other than those referred by the facilitator, and retains the ability to choose its own staff, it is akin to an independent contractor.^[20]

The relationship between facilitator and provider is also broadly comparable with that between a hospital and a visiting medical officer (VMO), in the sense that a hospital will provide the facilities for treatment without exercising any control over the way in which that treatment is delivered by a VMO. It has long been established by Australian courts that the relationship between a hospital and VMO is not one that gives rise to vicarious liability.^[21]

For additional protection, most facilitators will also attempt to limit any potential for liability by requiring prospective patients to sign waivers prior to treatment.^[22]

There is likely to be greater scope for a cause of action to arise under the Australian Consumer Law (ACL),^[23] which provides for consumer guarantees that cannot be excluded by contract. The most significant of these is the guarantee that services will be rendered ‘with due care and skill’.^[24] However it would not be sufficient to argue that a facilitator failed to provide services with due care and skill simply because the overseas provider failed to exercise due care and skill in the course of treatment. Presumably, there would need to be some clear evidence of direct failings by the facilitator themselves. This may be the case if, for instance, a facilitator has selected overseas doctors without performing the necessary due diligence to verify their qualifications, particularly if those doctors have a prior history of misconduct.

Another provision of the ACL which might potentially be invoked is s18, concerning misleading or deceptive conduct. Unless cosmetic tourism facilitators in Australia are medically qualified (which is unlikely),^[25] there is no legal obligation for them to disclose any risks associated with a particular procedure. Accordingly, there does not appear to be any scope for patients to seek compensation from a facilitator on the basis of a failure to warn. There are, however, situations where misleading statements or inducements by facilitators could foreseeably give rise to an action under s18 of the ACL. This might encompass misinformation regarding a healthcare provider’s credentials and experience,^[26] or a misrepresentation as to the true nature and quality of care that a patient can expect to receive.

However, even in the limited situations where patients have recourse under the ACL, the available damages may be considerably more speculative than in most common law claims.

Practical obstacles

The practical viability of pursuing local facilitators is also questionable in many instances.

The lack of any formal regulation of the medical tourism industry in Australia means that facilitators can operate without needing to comply with any professional standards or codes of conduct. They are not subject to the same requirements as medical professionals who, among other things, must carry professional indemnity insurance as a minimum condition of registration.^[27] As such, the first line of enquiry for an aggrieved patient is to determine whether the facilitator is insured. Without an insurer, it is doubtful that a facilitator would be able to satisfy a significant damages award. Smaller operators in particular are unlikely to hold substantial assets and may even be inclined to cease trading in the face of a legal challenge.

Further, while a facilitator may operate and provide services in Australia, it should not automatically be assumed that it is an Australian business. Take, for example, Gorgeous Getaways, which was implicated in the coronial investigation into the death of Leigh Aiple following cosmetic surgery in Kuala Lumpur in 2014.^[28] At that time, Gorgeous Getaways was incorporated in New Zealand despite having booked Mr Aiple’s medical holiday from Melbourne. Since then, the company has been acquired by TaqTik Health. Although TaqTik Health continues to conduct business under the name Gorgeous Getaways and maintains sales offices in Australia,^[29] its headquarters are located in the US and a brief search of the ASIC Registers reveals an absence of any current Australian-based corporate entity.^[30]

There are clear logistical challenges to issuing proceedings against a foreign corporation and those challenges are further amplified where the corporation’s assets are also based overseas.

CONCLUSION

With the already burgeoning medical tourism industry predicted to grow in coming years, it seems that patients remain willing to accept the potential safety risks despite continued warnings from government and medical bodies. However patients may not realise that overseas medical care also gives rise to very complex legal challenges, to the extent that they may find themselves without a genuine avenue for recourse if things do not go to plan. Those seeking to hold healthcare providers directly accountable for their conduct are likely to be impeded by jurisdictional and choice of law considerations, and yet the pursuit of third-party facilitators may prove equally as difficult due to the limited causes of action available and the way in which the entities conduct their business.

Until a medical tourism case is tested in Australia’s superior courts, legal practitioners will also be forced to navigate these obstacles and the legal uncertainties that surround claims for injury following substandard treatment overseas.

Louis Baigent is an associate in the medical negligence team at Maurice Blackburn Lawyers. PHONE [phone] EMAIL [e-mail].

Sarah Vallance is a senior associate and the leader of the Queensland and Northern Territory medical negligence teams at Maurice Blackburn Lawyers. PHONE [phone] EMAIL [e-mail].

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^[1] P Kassim, ‘Cross-border issues in the development of medical tourism in Malaysia: Legal challenges and opportunities’, Journal of Law and Medicine, Vol. 17, 2009, 59–73, [60].

^[2] G Cohen, ‘Protecting patients with passports: Medical tourism and the patient-protective argument’, Iowa Law Review, Vol. 95, 2010, 1467–567, [1471].

^[3] The Organisation for Economic Co-operation and Development (OECD), Medical Tourism: Treatments, Markets and Health System Implications: A Scoping Review (Report, 2011) 1–55, [11].

^[4] Global Market Insights, Medical Tourism Market Size By Application (Cardiovascular Surgery, Cosmetic Surgery {Hair Transplant, Breast Augmentation}, Dental Surgery, Orthopedic Surgery, Bariatric Surgery, Fertility Treatment, Oncology Treatment), Industry Analysis Report, Regional Outlook (U.S., Canada, Germany, UK, France, Italy, Spain, Turkey, Poland, The Netherlands, India, Thailand, Singapore, Malaysia, Mexico, Columbia, Costa Rica, South Africa, UAE, Iraq), Application Potential, Price Trends, Competitive Market Share & Forecast, 2021–2027 (2020) <https://www.gminsights.com/industry-analysis/medical-tourism-market>.

^[5] Ibid.

^[6] University of Leeds, Sun, Sea, Sand and Silicone: Mapping Cosmetic Tourism Surgery. Final Report 2014 (Report, 2014) 1–20, [8].

^[7] Victoria State Government (Better Health Channel), Medical tourism and insurance (December 2017) <https://www.betterhealth.vic.gov.au/health/HealthyLiving/medical-tourism>.

^[8] Ibid.

^[9] P Leggat, ‘Medical tourism’, Australian Family Physician (scholarly journal of The Royal Australian College of General Practitioners), Vol. 44(1), 2015, 16–21.

^[10] Royal Australasian College of Surgeons, Medical Tourism (Position paper, 2017) <https://www.surgeons.org/en/ about-racs/position-papers/medical_tourism_2017>.

^[11] The relevant test for forum non conveniens in Australia was articulated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197.

^[12] In Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 65 ALJR 83, the High Court considered all of these factors in determining that NSW was a clearly inappropriate forum in which to permit the action to proceed.

^[13] D Svantesson, ‘Medical tourism and telemedicine: The latest arenas for international torts litigation’, Precedent, Issue 107, 2011, 14–7, [16]–[17].

^[14] P Mirrer-Singer, ‘Medical malpractice overseas: The legal uncertainty surrounding medical tourism’, Law and Contemporary Problems, Vol. 70, 2007, 211–32, [226].

^[15] Better Health Channel, see above note 7.

^[16] N Cortez, ‘Patients without borders: The emerging global market for patients and the evolution of modern health care’, Indiana Law Journal, Vol. 83, 2008, 71–132, [91].

^[17] K Howze, ‘Medical tourism: Symptom or cure?’, Georgia Law Review, Vol. 41, 2007, 1013–52, [1035].

^[18] Cortez, see above note 16, [106].

^[19] Ibid, [106]–[7].

^[20] Kassim, see above note 1, [65].

^[21] See Ellis v Wallsend (1989) 17 NSWLR 553.

^[22] Beautiful You Holidays stipulates as part of its terms and conditions that: ‘Beautiful You Holidays does not accept any liability of whatever nature for the acts, omissions or default, whether negligent or otherwise, of tour operators, airlines, hospitals, doctors, clinics, dentists, hotels and other providers of goods and services to you directly or indirectly in connection with any tour organised by Beautiful You Holidays on your behalf.’ <https://www.beautifulyouholidays.com/terms-conditions>.

^[23] Competition and Consumer Act 2010 (Cth), sch 2.

^[24] Ibid, s60.

^[25] A survey conducted by the University of Leeds found that most facilitators did not have any tertiary qualifications: see above note 6, [10].

^[26] See Howard v University of Medicine & Dentistry of New Jersey, 800 A 2d 73, 82 (NJ, 2002).

^[27] Australian Health Practitioner Registration Agency, Professional Indemnity Insurance Arrangements (2 December 2019) <https://www.ahpra.gov.au/Registration/Registration-Standards/PII.aspx>.

^[28] Coroners Court of Victoria at Melbourne, ‘Finding into death of Leigh Thomas Aiple without inquest’ (Coronial investigation findings – COR 2014 2427, 4 December 2017).

^[29] TaqTik Health, Corporate, Achievements and Milestones (2020) <https://taqtikhealth.com/about/ corporate/>.

^[30] Australian Securities and Investments Commission, Search ASIC Registers (2021) <https://connectonline.asic.gov.au/RegistrySearch/faces/landing/SearchRegisters.jspx?_afrLoop= 003402451040482&_afrWindowMode=0&_adf.ctrl-state=8cebd3y2l_54>.