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At the Forefront of Medical Tourism Law

Imagine undergoing surgery overseas to save yourself money. The doctors and hospital seem reputable. Your primary U.S. physician endorsed your choice. So did your insurance carrier, which covers eligible expenses as if they were accrued domestically. Now, imagine suffering post-surgical complications after returning home. You can’t easily return overseas. So you secure treatment locally, racking up unexpected, out-of-pocket costs. Afterward, you consider suing.

But who’s liable? The surgeon, or your primary care doctor? How about your insurance company? Do you sue domestically or abroad?

Those are some typical questions being considered by Nathan Cortez, an assistant professor of law at Southern Methodist University, where he teaches courses in administrative law, health law, Federal Drug Administration law and the legislative process.

His research focuses on medical tourism, the fast-growing but seemingly unregulated industry of health care professionals offering consumers more-affordable care abroad. Among other things, Cortez is examining what legal recourse U.S. patients have when problems arise.

“There’s legal uncertainty about everything, as well as a regulatory void,” he says. “There’s a flood of ethical, policy, legal and moral issues.”

High-quality medical procedures overseas run the gamut, from dental implants to hip joint re-surfacing; prostate removal to organ transplant. Some operations are as much as 90 percent cheaper in foreign countries, Cortez says, adding that the most popular destinations include India, Chile and Thailand.

In 2005 alone, one particular Bangkok, Thailand, hospital saw more than 55,000 Americans. In a 2008 issue of the Indiana Law Journal, Cortez suggests the Department of Health and Human Services as a viable entity that could coordinate U.S. regulatory controls over medical tourism. He proposes policymakers build on existing consumer protection laws and expand licensing systems.

He hasn’t found any court rulings involving disgruntled medical tourists so far, although health care providers everywhere have presumably reached confidential financial settlements with at least some unhappy patients. “The lack of test cases illustrates the legal uncertainty,” Cortez says.

Cortez, who holds a law degree from Stanford University, became interested in medical tourism while practicing at a Washington, D.C., firm. There, he represented medical technology clients, specializing in health care fraud, FDA enforcement and health privacy. While medical tourism didn’t directly enter his work, some of his clients were outsourcing clinical trials to health care providers abroad, causing Cortez to wonder about the legal implications and potential liabilities. Closer to home, his grandmother had gone to Mexico for dental care, but wound up with after-care problems requiring treatment back in the United States.

Cortez says employers are growing increasingly receptive to foreign health care for their workers in order to trim costs. However, he’s unaware of any U.S. universities actively promoting overseas health care to their faculty and staff at this time.

People considering medical procedures in another country should carefully weigh the advice of their local physicians, Cortez says, especially if that advice opposes their going abroad for surgery. Consumers also should limit their overseas selection from among upscale facilities accredited by the Joint Commission International, which works with health care organizations in more than 80 nations.

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