Recalibrating the Legal Risks of Cross-Border Health Care

Abstract

Three patients leave the United States for surgery. The first is self-employed and has no health insurance. He needs life-prolonging heart surgery that would cost at least $50,000 in the United States. On the Internet, he finds a cardiac surgeon at a private hospital in New Delhi, India, who can perform the surgery for no more than $10,000. Terms and conditions on the hospital's website require patients to resolve any complaints in Indian courts or in one of India's consumer dispute forums. Civil litigation in India can take fifteen to twenty years to resolve, and India's consumer forums cannot grant non-economic damages like pain and suffering. The second patient works for a large, self-insured manufacturer. To compete with foreign manufacturers, his employer must cut jobs and benefits. After seeing a segment on medical tourism on the news, the manufacturer's benefits manager contacts a medical tourism facilitator in North Carolina. Together, the companies craft a plan to outsource expensive surgeries by paying employees for travel expenses and offering them 25% of the cost-savings, up to $10,000. The employee needs knee surgery, so the facilitator arranges for it at a famous private hospital in Bangkok, Thailand. The contract stipulates that the facilitator shall not be held responsible for any negligence committed by the Thai hospital or physicians. Moreover, the employee must sign a waiver agreeing not to hold the employer liable. The average malpractice payout in Thailand is less than $2500. The third patient buys health insurance through her employer. The insurance company recently added to its provider network a private hospital in Monterrey, Mexico, and it now offers a plan with much lower premiums and deductibles to patients willing to visit Mexico for certain procedures. The patient visits Monterrey for cataract surgery. The insurance policy states that all network providers are independent contractors and are not agents of the insurer. Mexican law pegs tort compensation to very modest awards in its federal workers' compensation statute. Moreover, under Mexico's new medical arbitration system, the average malpractice recovery is roughly $4800. These patients have three things in common. They are gainfully employed. They are leaving the United States to save money on medical expenses. And they have very little legal recourse should they fall victim to medical negligence.