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So you manage a hospital or work with a hospital outside of
the United States and you just cannot ignore the fact that the U.S.
health care system is not readily available to just about one-third
of all Americans. It seems like every day you see the same statistics
quoted in the news media, cited by candidates running for political
office or in the trade press, that as many as 50 million Americans
have no health insurance and that at least another 50 million are
inadequately insured. You read the complaints of U.S. businesses
that the cost of providing health care benefits is increasing at a
rate that threatens global competitiveness, if not corporate
viability altogether. You see Michael Moore’s documentary, Sicko,
and you know that you just might have an affordable option for
care and treatment to many of these Americans. Finally, you think
you understand enough of the public policy debate in the United
States over health care to conclude that fundamental change to
the current system is a long way off.
Wow! A market of at least 100 million potential patients,
employers looking for relief, political paralysis and you have a
product that is of better or equal quality and far less expensive to
offer to U.S. citizens. Why not go for it?
Appropriately, you hesitate and wonder what risks are
associated with this great opportunity. Although health care in
the United States is heavily regulated, raising tax, ERISA, privacy,
licensing and insurance issues, more likely than not, the first thing
you think about is medical liability. If you are a provider, you
correctly wonder if engaging in the care of American citizens
exposes your organization and the individuals who provide clinical
and other services to liability in United States courts. If you help
facilitate obtaining care for American citizens in foreign hospitals,
you also wonder if you will find yourself in court. And if so,
what does that mean and can the risk of liability in US courts be
managed sufficiently to justify a business decision to go after the
American market?
The American Judicial System
No doubt you already know that the United States is the most
litigious country in the world and you expect that you might get
sued. Inevitably, some US citizen will experience a bad result and
you wonder if your healthcare facility has adequate defenses to
protect you from liability in our courts. Defenses and postjudgment
realities such as personal jurisdiction, waiver, choice of
law and forum selection clauses, theories of medical liability,
16 DECEMBER 2007
MEDICAL TOURISM
The United States Court System
and Liability for Treatment of
American Patients Overseas
~ Challenging Jurisdiction ~
By FREDERIC J. ENTIN, ESQUIRE
liability insurance, service of process and enforcement of judgments
will be adjudicated in American courts of law.
To best understand how these issues will be resolved, it is helpful
to note which aspects of the United States legal system have and
will affect medical malpractice litigation. In the United States,
different jurisdictions with different principles of law, aggressive
and creative lawyers, and the unpredictability of individual judges
will have a profound affect on the success of a medical malpractice
claim. As care is delivered outside of the United States, poor
outcomes will inevitably occur. Patients will quickly realize that
legal recourse outside of the U.S. courts is unattractive and
inadequate by our standards. Once retained by the patient, their
lawyers can be expected to examine every step in the process from
initial patient contact to discharge to follow up care at home, to
find a way to get jurisdiction in a U.S. court and to have that court
apply U.S. law. The same creativity and aggressive lawyering that
has made for large judgments and broad liability here will be applied
to these new factual circumstances. A careful examination of our
system by those looking to facilitate and provide care for American
citizens may influence decisions about who is treated, how the
patient is treated and how the services of the provider are marketed.
51 American Court Systems
LEGAL ISSUES
Unlike other countries, the United States does not have a unified
single body of law for the entire country. Although there is a
Federal Court System, liability of the type commonly alleged when
a patient has a bad outcome is covered by state law. Each state has
its own legislature that makes the law and courts that interpret and
enforce the laws. Including the District of Columbia, that makes
for 51 separate jurisdictions with sometimes subtle and sometimes
significant differences in substantive law and procedure. In the
early part of this decade, the medical malpractice insurance crisis
caused many state legislatures to reexamine state medical
malpractice law. What resulted is typically American. Some states
did nothing, many states passed reforms and plaintiff’s lawyers
immediately started challenging the constitutionality of the reforms.
The differences from state to state may be substantial enough to
influence where the foreign provider markets its care.
The incentives to sue are high and the barriers to the courts are
low in America. While the law continues to vary from state to
state, it is clear that judgments and settlements are much higher in
all of the 51 jurisdictions than in other country. This is largely
attributable to the ability in almost all states to recover