Medical tourism liability may fall on domestic doctors

December 4, 2009
Brian S. Kern, JD
Brian S. Kern, JD

When a U.S. resident is sent abroad for treatment by a managed car company, does a patient have any available recourse if he or she is a victim of negligence?

Key Points

Before the medical tourism market truly can compete with the domestic market, however, several legal issues may need to be resolved. Perhaps the most important legal issue involves the question of medical liability. When a U.S. resident is sent abroad for treatment by a managed care company, does a patient have any available recourse if he or she is the victim of negligence?

Under the professional contractual liability theory, a managed care company could be held liable for the negligence of a physician in its network if it can be proven that the physician lacks certain requisite credentials. To mitigate this potential liability, managed care companies have inserted clauses into contacts with providers requiring physicians to indemnify them in the event that such a claim arises. By doing so, and by requiring network providers to maintain high levels of insurance (usually $1 million per claim), any benefit to a trial lawyer to include a managed care company as a defendant in a professional negligence lawsuit has virtually been eliminated.

Historically, insurance carriers have had limited success in reducing liability through these types of contractual provisions. Courts, finding that patients lack the sophistication and bargaining power to meaningfully waive their right to sue, are reluctant to uphold language that diminishes those rights.

This history may not translate well for U.S. physicians seeing patients who were treated overseas. Managed care companies often write contractual provisions to insulate themselves from claims and may attempt to put the liability burden on U.S. physicians. Thus, if a patient was the victim of overseas malpractice from an in-network physician and wants to sue, his or her local primary care physician may represent the best possible recourse. Theories of liability against domestic physicians could include failure to provide proper follow-up care, investigate the credentials and standards of the foreign institution, or to obtain and/or communicate necessary medical information.

Coordinating the care of medical tourists poses several challenges. U.S. physicians may have difficulty accessing medical documentation for patients who underwent procedures overseas. Even if records are obtainable, they may be written in a foreign language or otherwise may be difficult to discern. Contacting providers also may prove difficult.

When providing follow-up care for patients who have undergone procedures overseas, a practice should consider incorporating specific questions pertaining to such treatment during the initial screening and consultation and should address all added risks on consent forms. Moreover, those physicians who refer or help facilitate foreign treatment should ensure that the corresponding medical chart is well documented and should have patients acknowledge the inherent risks in writing.

The author is a co-founder and partner of Argent Professional Insurance Agency in Warren, New Jersey. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com