Blog

Legal issues surrounding medical tourism

Dominic Cookman

12 Apr 2017

Topics

  • Compensation
  • Dispute Resolution

Increasing numbers of Australians are travelling overseas seeking a variety of medical treatments, particularly cosmetic surgery and dentistry, enticed by lower treatment and operating costs. Some estimates put the number of Australian ‘medical tourists’ at 15 000 annually. Travel abroad for medical procedures is a world-wide phenomenon, with Patients Beyond Borders estimating there were 14 million medical tourists in 2016. Medical tourism has particularly been booming for more than a decade in Asia. The announcement by NIB in 2014 that it would begin offering health insurance packages covering the cost of overseas elective procedures put the issue of medical tourism in the media spotlight. Here, Dominic Cookman, Lawyer with Snedden Hall & Gallop, discusses the legal ramifications for Australians considering medical tourism.

Many Australian physicians have expressed concern about the difficulties faced by the Australian health system when complications or errors occur as a result of medical tourism procedures. Even where the medical procedure goes smoothly, medical tourism may still raise dilemmas and difficulties regarding continuity of care and subsequent outpatient treatment once the patient returns to Australia.

Let’s look at just a couple of the legal obstacles that Australians may face when seeking medical treatment overseas.

The Contract

Unlike medical treatment in the Australian public health system, it is likely that a patient will enter into a contract for overseas surgery. We would advise that you review any surgery contract that you receive very carefully. It is unwise to sign any contract in circumstances where you do not have easy recourse to informed legal advice. It may be that such contracts contain exclusive jurisdiction clauses which expressly exclude Australian courts from hearing disputes under the contract.

What if something goes wrong?

When errors are made, medical tourists can find legal redress difficult if not impossible to access. Problems can include difficulties identifying the defendant, language barriers in the gathering of evidence, and jurisdictional disputes amongst the parties.

If you are a patient seeking legal redress, you may find that as a foreigner you have limited protection or support in the overseas legal system. There may also be significant differences in the medical complaint dispute resolution procedures. The Royal Australasian College of Surgeons recently wrote about medical tourism: “In the case of an adverse event or incidence of medical negligence, patients should be aware that there is no standard international complaints system.”

Even where an Australian court has jurisdiction over a claim, it is a well-established legal principle that the applicable law is the law of the place of the wrongdoing.

Snedden Hall & Gallop Lawyers can assist you

Our best advice, if you are considering a medical procedure overseas, is to let us review your medical contract for you. You can contact Dom Cookman and the team at Snedden Hall & Gallop today by email here or on(02) 6285 8000.