Thepatients_prot

PATIENT RIGHTS
The Legal Environment for Medical Tourism
Can business lead the way?
The complexity of rules
The laws applicable to an international
patient program are voluminous.
Health care providers are subject to
local rules and regulations regarding
safety, licensure, controlled substances,
business relationships, participation
in government health programs,
negligence and malpractice
standards, privacy, patient consent,
and many other issues. Some of those
rules and regulations create patient
rights – rights that
set patient expectations
and potentially
provide a patient a
cause of action
against a provider
that fails to satisfy
the standards of
those rules and
regulations. Others
of those rules and
regulations create
obligations enforceable
by government
agencies, and some
can even subject
violators to criminal
prosecution.
In the context of
an international
patient program the
application of those
rules and regulations
can be obscure.
For example,
if a hospital in Malaysia is treating a
patient from Germany, must the hospital
in Malaysia satisfy the requirements
of German and EU privacy
laws? What must the German provider
do to satisfy its obligations under
the privacy laws if that provider is
administer pre or post care for the
traveling patient? Can a Florida doctor
receive a commission from a foreign
provider for a patient referral?
What about one from Nigeria? If an
Indian doctor provides a consult by
telephone to a patient in Sri Lanka,
can the Indian doctor prescribe a drug
treatment? Can a patient receiving
care in Thailand travel back to Saudi
Arabia with drugs prescribed in Thailand?
These questions are sometimes
difficult to answer, and they are limited
in number only by the extent of
health care interactions.
Right now, health care providers,
medical travel facilitators and international
patients engage with each other
without complete clarity as to the application
of law.
Patient rights, government
enforcement
and business
relationships can
all be affected by
the multiplicity of
laws of the various
jurisdictions that
may be involved in
a medical travel
encounter.
The lack of clarity
and lack of
uniform global
standards has not
stopped the development
of the
medical tourism
industry. And
there is a good
reason for this.
Even though there
is a great diversity
in legal standards, legal rules are jurisdictional,
and rarely extend beyond
national borders. Accordingly, a provider
in Thailand, for example, that
treats a patient from Ireland generally
need not concern itself with the laws
in Ireland.
But these are assumptions. In very
few instances have laws been created
to address the particular issues raised
by the development of medical tourism;
and the analysis we may apply to
a circumstance has likely not been
Dale C.
Van Demark
is a partner in the
I n t e r n a t i o n a l
Health Industry
Advisory Practice
of McDermott
Will & Emery
LLP, one of the
world’s leading
law firms. Mr.
Van Demark advises health systems
on strategic affiliation and merger
transactions, international patient program
development, telemedicine, and
governance and business matters. Mr.
Van Demark works with both US and
non-US clients in their global health
care development efforts.
tested by the courts or other government
agencies.
Is this a sustainable
environment?
Some governments have begun to
address medical tourism, but it is
unlikely that uniform standards or
even compatible structures will be
developed. In addition, government is
generally reactive, and works to correct
a perceived problem. Accordingly,
regardless of whether the current
mish-mash of laws represents an
efficient environment for the development
of the medical tourism industry,
it is what we have.
In this environment, the medical tourism
industry would be well-advised to
pay careful attention to applicable law
and not create issues for governments
to try to address. By demonstrating
that the industry is addressing the fundamental
policy concerns of safety,
protection of patient data, and sufficient
transparency for informed decision
making and showing a respect for
local law, the industry can establish an
environment where the development
of law will be rational and supportive,
rather than reactionary and destruc-
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