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MEDICAL TOURISM
occurred outside of the United States, immunize you from
liability? It depends! But it is clear that over the years, starting
with a case called International Shoe Co. v Washington, the United
States Supreme Court, has allowed state courts to assert personal
“long-arm” jurisdiction over a nonresident even though the
defendant is not personally served within the state, provided the
defendant has certain “minimum contacts” and the action “does
not offend traditional notions of fair play and substantial justice.”
Long-arm jurisdiction can be general or specific.
Specific Personal Jurisdiction
A court can exercise specific personal jurisdiction over a non-resident
defendant when the defendant’s activities within the state serve as or
are related to the basis of the lawsuit. For example, a patient calls a
medical tourism facilitator in another state acting as a representative
of a foreign health care provider, and the representative assists the
patient in the selection of a hospital and the patient alleges he has been
the victim of negligent care. In addition to suing the hospital and
physicians for negligence, the patient might also allege that the decision
to travel abroad for the procedure and the referral to the specific
hospital or physician was the proximate cause of the injury. Before
the defendants are forced to defend the claim on the merits, they can
first challenge whether there is proof of the requisite connection
between the act allegedly occurring in the state in which suit is sought,
the recommendation or referral and the injury. An inquiry of this
nature would not extend to the actual merits of the negligence claim,
but if the court believes there is a connection, it will exercise specific
personal jurisdiction and force the defendant hospital and physicians
to defend or face a default judgment. Even if the defendants are
successful in getting the matter dismissed for lack of personal
jurisdiction, it will cost time and money to defend.
With extensive use of the Internet to reach out to prospective patients,
claims of specific personal jurisdiction are likely to arise. Developing
case law tells us that the interactivity of the website consulted by and
used by the patient and the hospital, may give a court sufficient
grounds to find specific personal jurisdiction.
It is important to remember that specific personal jurisdiction is for
18 DECEMBER 2007
that case only and other claims involving the same defendant and the
same state are subject to fresh analysis of the underlying facts.
General personal jurisdiction
As opposed to specific personal jurisdiction, general personal
jurisdiction exposes a defendant to the jurisdiction of the courts
for all actions. A court can exercise general jurisdiction over a person
if the defendant’s conduct in the state is “continuous and
systematic”. Because a plaintiff bears a higher burden of proof to
establish general jurisdiction, even the use of a highly interactive
web site on the internet would be less likely to constitute the kind
of continuous and systematic presence in the state to give a court
the basis to assert general personal jurisdiction. However, the
more the website becomes a virtual transactional workplace,
developing legal precedents might encourage a judge to conclude
that the website is no different than a physical office, that the
presence of the foreign defendant is “continuous and systematic”
and that there is jurisdiction for all purposes.
Conclusion
Bad results and poor outcomes occur whenever patients receive
health care. This will be true whether the patient receives treatment
in the United States or abroad. Methods of compensation for
medical injuries in other countries are likely to be viewed as
inadequate when compared to the American system. Some patients
will understand that limited compensation in the event of a poor
outcome is one of the tradeoffs for going abroad for medical care.
Other patients may not be as forgiving. Those who choose to help
arrange for care and those who engage in the treatment of Americans
abroad must prepare to defend against clever, resourceful and
aggressive lawyers and sympathetic judges.
This article has discussed the first line of defense, challenging
jurisdiction. While a future article will go into more detail about
jurisdictional pitfalls, other articles will discuss how to manage
risk in the event a sympathetic judge takes jurisdiction and requires
the foreign health care provider to defend itself.
Fredric J. Entin is a partner with Foley & Lardner LLP. A member of the
firm’s Health Care Industry Team, he served as chair of the former Health
Legislation/Associations Practice. Mr. Entin has broad experience representing
hospitals and other health care providers focusing on compliance with a wide
variety of issues including antitrust, Medicare and Medicaid, medical staff
and exempt tax law. He has also represented trade associations and their
subsidiaries for many years. Prior to joining the firm, Mr. Entin served as
senior vice president and general counsel for the American Hospital
Association (AHA) for more than eight years. Fred is an Advisory Board
Member of the Medical Tourism Association.