---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Thirteenth in a series of interviews in which specialist travel lawyer Anthony Cordato discusses issues of vital importance to travellers, travel agents and tour operators. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Cannes was a very sophisticated place to be in the 1890’s when the future King Edward VII frequented La Croisette for the healthy sea air, the caviar and the champagne. For many centuries, the wealthy indulged in ‘medical tourism’ by travelling to baths and spas across Europe to improve their health and enjoy themselves in the process. These days, travel packages offer ‘health and lifestyle’ travel to beach resorts and cruises (for the sea air), to spa resorts (for the hot mineral spa waters) and to alpine resorts (for the fresh mountain air). Typically, medical tourism involves travellers from affluent countries heading abroad for ‘medical reasons’ seeking cut-price elective surgery and dental surgery. Growing numbers of Australians are booking themselves into Asian operating theatres for a ‘nip and tuck’ or a ‘tooth cap and whitening’. Growing numbers of affluent Asians are booking themselves into Australian operating theatres for ‘sophisticated’ surgery. In this article we examine the medical tourism phenomenon, where the travel agent who makes the booking stands, and what tour operators who package the tours must do to ensure that they are not in the ‘firing line’ when botched surgery leads to complications. Why has medical tourism become popular? “Medical tourism has become popular because there is a demand” states Anthony Cordato, whose legal firm, Cordato Partners, Tourism Lawyers, offers specialist legal advice to travel agents, tour operators and carriers. “The demand is coming from employers and health insurers in the US, Canada, the UK and the rest of the European Union who are now starting to look at the potential to ‘outsource their healthcare’ and send literally millions of patients overseas to international hospitals specializing in Medical Tourism. It is coming from affluent patients in Asia, who are looking at the first-rate medical care available in Australia and New Zealand. “There are two good reasons for the demand: “Firstly, if we are a global society and can provide all kinds of goods and services globally, why cannot medical and healthcare services be provided globally – particularly those surgical procedures that are discretionary and price-driven, such as cosmetic surgery and cosmetic dental surgery? Why not indeed, when the cost of the surgery in a foreign hospital is far cheaper than in the local hospital? The demand for expensive surgical procedures is driving US and EU health insurers to ‘global outsourcing’ for cost reasons. In the USA, for instance, heart surgery can cost US$120,000, whereas in Asia it cost between 10% and 50% of that amount.” “Secondly, the provision of healthcare services in some countries is quite sophisticated, and the waiting lists are short in the private hospital system. It is therefore attractive to travel to those countries for surgery. An example: Americans are reported to be travelling to New Zealand to have their surgical procedure plus two weeks accommodation with a nursing assistant, for half the cost of surgery and post-operative care than in the USA. The type of surgery involved is often hip or knee replacement, both very common operations but expensive in the USA.” What are the ‘hot’ medical tourism destinations in the Asia/Pacific? Thailand is the most popular Asian destination for American medical tourists, with its many well-run and advanced private hospitals. For instance, the Bumrungrad International Hospital advertises itself as “A top world medical destination with excellent service and superior value”. It offers a broad range of surgical procedures. It claims 60,000 American patients a year, is accredited by JCI (the US-based Joint Commission International), and has its own in-house travel agency. Thailand’s strength in this very competitive market is its competitive pricing, with prices said to be up to 50% cheaper than Singapore, 66% cheaper than Hong Kong and 80% to 90% cheaper than Europe and the USA. Thailand is also known for attracting Australians for cosmetic enhancement surgery (face-lifts, tummy tucks, and breast augmentation), IVF and dental surgery, and even sex-change operations, sometimes called ‘gender reassignment’. The Philippines also targets Americans. One clinic has this catchy advertisement - “Holiday or dental work: difficult choice, you can only afford one or the other. Those teeth have been bothering you forever. Then again how long is it since you had a decent holiday? NOW you can have BOTH in the PHILIPPINES!” India, Malaysia, Singapore, Hong Kong and New Zealand are on the growing list of countries in the Asia/Pacific which are promoting themselves as medical tourism destinations, often adding a post-surgery holiday to relax and recuperate. Australia is a medical tourism destination for affluent Asians, because sophisticated health care is available, cultural sensitivities are not offended and the air travel is less than eight hours. Australia is regarded as having the best surgeons and health care facilities in the Southern Hemisphere. Australia is known for cardiac surgery (heart by-passes and stents), joints surgery (hip replacements, knees), transplant surgery (heart, heart and lung, kidneys) and veins. The Australian Tourism Export Council is promoting inbound medical tourism into Australia. Many private hospitals cater for inbound medical tourists. A five-star resort is being set up in Cairns, Queensland for reproductive tourism (in-vitro fertilisation - IVF), targeting 50% domestic tourists and 50% international tourists. It is safe to say that there will be many more medical tourism resorts and facilities established in Australia to cater for the demand created by affluent citizens in Asia. Legal risks of medical tourism – who is legally responsible? The downside of medical tourism is that often things go wrong. Indeed, it is easy to imagine how medical tourism can give rise to legal issues. As Cordato points out: “What happens if the operation is not successful, and post-operative complications arise such as infections, hair loss, scarring, paralysis and failed implants? Suppose a traveller returns home and needs to undergo corrective surgery? Suppose a traveller needs medical assistance to return home? They will be out of pocket for the corrective surgery, not just for the extra airfares. That doesn’t produce a very happy or satisfied customer! “Doctors and dentists in Australia regularly find themselves working to correct botched surgery and dentistry resulting from complications which come from medical tourism and dental tourism trips abroad.” The cost can be substantial financially and emotionally. Who pays? Who is responsible? It’s best to start off with who is not responsible – the insurers. Travel insurers provide no medical cover for medical or dental procedures abroad if the procedure is for a pre-existing medical or dental condition or if the surgery or procedure or dental treatment is planned as part of the travel. If travel insurance is taken out for medical tourism, this lack of cover should be pointed out. Health Insurers in Australia (Medicare or Private Health Insurers) will provide no cover if the procedure is carried out outside Australia. In some cases, there may also be difficulty in recovering the cost of consultations and treatment necessary to deal with any post-surgery complications that must be dealt with on return to Australia. For instance, cosmetic surgery (to enhance appearance) and often major joint replacement (artificial knees/hip) are specifically excluded in most private health fund policies. Travel Agents and tour operators booking medical tourists – the three golden rules to avoid legal responsibility If the travel is booked through a travel agent or tour operator based in the same country as the traveller, the agent or operator is liable to be drawn into the legal claim for compensation for botched surgery, because they are local. Travel agents and tour operators who follow three golden rules will go far in avoiding claims posed by medical tourism.
Golden Rule One – book with reputable healthcare providers It is the travel agent’s and tour operator’s duty of care when advising and making the booking to check that the healthcare provider is reputable in providing good quality care. Checking accreditation is by far the best way of checking reputability, and far superior to word of mouth. Some hospitals and surgeries will have Australian accreditation, others international accreditation such as by the American Joint Commission International (JCI), the international arm of the organisation that reviews and accredits American hospitals. It is beyond the call of duty to check up on the competence of the surgeons themselves. The healthcare provider’s policy on dealing with medical claims and compensation and the existence of professional indemnity insurance cover, is also very relevant to its claims of providing quality health care. One reason why overseas medical tourism is cheap is that the surgeon and the facility are not paying Australian Medical Indemnity Insurance premiums for policies which would provide compensation.” Many foreign hospitals and surgeries used for these procedures are well-equipped, expertly staffed and highly reputable. But that is not always the case. Australia’s Department of Foreign Affairs and Trade is concerned enough about medical tourism to place the following paragraph in the “Health Issues” section of its travel advice for Thailand on its www.smartraveller.gov.au website: “Medical tourism”, including for cosmetic and sex-change operations, is common. Australians should ensure that they are not lured to discount or uncertified medical establishments where standards can be lacking resulting in serious and possibly life-threatening complications. Hospitals and clinics have been known to refuse compensation to patients not satisfied with the results of cosmetic surgery. Travel agents and tour operators will recognise that they dealing with a reputable healthcare provider, if the healthcare provider is specifying at least these procedures:
Golden Rule Two – make no recommendations, limit responsibility and obtain a waiver Passing on the brochure: There is a fine line to be drawn between recommending a healthcare facility and passing on a brochure describing the features of the facility. To walk on the right side of the line, the travel agent will pass on the brochure, after having checked the reputation of the healthcare provider, and if possible, the quality of the medical treatment and the post-operative accommodation. The travel agent will warn their client that their responsibility is to ensure that the booking is made properly, and that it is the traveller’s responsibility to satisfy themselves about the quality of the surgery or healthcare. You may say that this is obvious, but precaution is better than a legal suit! Travel agents and tour operators should include a general ‘responsibility’ booking condition in the itinerary along these lines: Responsibility: We book the travel you request, with suppliers and providers approved by you. We are not responsible for the way in which the suppliers and providers perform or fail to perform or wrongly perform the services they promise. In the event their performance (or lack of performance) results in loss or damage to your possessions, or illness, injury or death to you or your travelling companions, delays in or amendments to travel arrangements, medical complications, your recourse is limited to those suppliers or providers (and applicable travel insurance). It is your responsibility to obtain advice from a medical practitioner before travel on the medical risks you will be taking by the travel. Waiver: Tour operators should ensure that the medical tourist signs a waiver – to the effect that they acknowledge: (a) the risks of travelling to have surgery; (b) the risks of the surgery itself; (c) that they will rely entirely upon the medical judgement and expertise of the medical practitioner; and (d) the healthcare facility is responsible for their welfare. Avoid making travel arrangements for travellers who desire to travel to buy drugs – they run the risk of being arrested at customs for transporting prohibited items!
Golden Rule Three – insist that the traveller obtain medical advice before departing Medical tourists will not be in the best of health. Long distance air travel requires a level of fitness – travellers with heart (thrombosis) or breathing-related problems are especially at risk. All medical tourists should be medically assessed before travel for fitness to travel for the surgery, and the post-operative travel home. Medical tourists will need to consult a local medical practitioner to obtain advice as to risks such as whether the desired surgery is appropriate for them and to be warned of the medical risks of the desired medical procedure. A medical history and list of drug allergies should be given to the traveller to take with them. The risks of foreign healthcare facilities should be discussed. The risks include that the surgeon may not have the opportunity to properly assess the suitability of the medical procedure for the patient, the technique to be used and the potential exposure to different infectious diseases and infections such as gastrointestinal diseases (e.g. Hepatitis A, amoebic dysentery, and paratyphoid) which could weaken progress, also mosquito-transmitted diseases, influenza, and tuberculosis. Medical tourists will need to be advised of a suitable period of convalescence after the surgery, for rest and recovery; the fact that long distance air travel soon after surgery can increase the risk of complications, and advice such as to cover up to avoid a suntan for exposed scars, to prevent scars becoming darker and more noticeable. The risk that return travel could be delayed if complications arise, that an extra airfare may be needed for a carer, should be covered. An explanation should be provided of the follow-up treatment, particularly if joint surgery is involved, where physiotherapy will be required. If the name of the overseas surgeon is known to the medical practitioner, they may be able to comment on their reputation. If not, it is wise for the traveller to carry out their own checks. The traveller is entitled to keep the medical advice obtained private, under medical privacy laws. The travel agent or tour operator does not need to see the advice, so long as they know that the traveller has received the advice. The medical advice should be given by a local medical practitioner. In 2007, the NSW Medical Board threatened legal action against ‘Gorgeous Getaways”, a cosmetic tourism operator, when it brought Thai and Malaysian doctors to Australia to conduct ‘free consultations’ before booking for overseas surgery. The doctors were not registered to practise in Australia, and were therefore giving medical advice illegally. Finally, the medical practitioner may comment upon ethical issues, such as the illegal purchase of organs and tissues for transplantation, and that medical tourism may be responsible for diverting scarce medical resources from treating the local population. The legal responsibility of the healthcare provider The overseas medical practitioner and the health facility may be legally responsible if medical negligence can be demonstrated. In the US this is called medical malpractice. To pursue a claim for medical negligence, a departure from the accepted standards for procedures in the country in which the surgery was carried out must be demonstrated. So not only must the legal claim be brought using the local legal system, but the claim must be established according to local medical standards of practice and local laws. Some legal systems permit waivers to exclude claims for negligence. As a result, claims for medical negligence face poor prospects of success, and are likely to succeed only in cases where the negligence is obvious and it is possible to retain a good local lawyer with language skills! For cosmetic surgery, it is almost impossible to prove medical negligence for various reasons. As a result, the patient will always need to meet the cost of reconstructive cosmetic surgery from their own pocket. Even if medical negligence is demonstrated, recovery can be an expensive and uncertain process. Medical Indemnity Insurance is not compulsory in many countries, and even if it exists, may be limited in amount, or exclude foreign tourists. To avoid being targeted for claims, foreign medical providers and many medical tour operators go to great lengths to ensure that they do not establish an office, do not appoint an agent, do not have any assets and in fact do nothing that can amount to establishing a ‘presence’ in the traveller’s home country. They rely on the internet to advertise and ‘flying visits’. This heightens the risks of a local travel agent or tour operator being targeted for a claim, as they are the only ones within the traveller’s home country available to be sued. Conclusion Medical Tourism is where the healthcare and tourism industries, the two largest industries in the world, combine with a product. Medical tourism is a growth area, with surgeons and hospitals marketing their services around the world as “first world treatment at third world prices”. Cordato’s advice to travel agents and tour operators in these circumstances is clear: “You’ve got no medical qualifications so carry out the booking, but don’t stray into making recommendations and giving opinions on whether other clients have been happy with their experience. Medicine is not in your field of expertise – make sure the client visits a local medical practitioner for advice. “Travel insurance does not cover medical tourism and medical insurance taken out in Australia usually won’t cover it either. So for the traveller, it is ‘travel for surgery at your own risk’. Make sure that the traveller knows this. Be sure to have a responsibility condition in your booking conditions, and if possible, have the traveller sign a waiver.” ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
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Medical Tourism –perfect for a suntan…and a new body!
Source = e-Travel Blackboard
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