Sun, sea and scalpel

Sara Williams, Dr Ming Teoh and Dr Lawrence Ng explore the world of medical tourism in Asia 

Medical tourism is big business in Asia. It is already outstripping the value of general travel bookings by more than 5%. This industry is expected to be worth US$5 billion in Asia by 2012.¹ Clinics and hospitals from all over the world offer packages in dentistry, cosmetic surgery, fertility treatment and conventional surgery, from heart bypasses to knee replacements. So it is vital that doctors know the risks of treating medical tourists and the professional issues involved.

Abacus International President and CEO Don Birch says: “The lure of low-cost, high quality healthcare in Asia is estimated to be attracting more than 1.3 million tourists a year to the key locations – Thailand, Singapore, India, South Korea and Malaysia. This is a new breed of travellers. They have particular needs: they are going to these locations for a specific reason, and reports are showing that their daily spend is more than double that of other tourists.”

Mr Birch notes that the number of service providers is increasing to meet demand, with tailored packages and services, and they are building cross-border partnerships to increase their catchment of customers.

What is medical tourism?

Medical tourism is a key component of international healthcare, where the healthcare professional and the patient are from different countries. The principal stakeholders are patients, providers, doctors, indemnity providers and regulators. It isn’t new – there are many historical examples of people travelling to seek out healing powers in other countries; for example, in Ancient Greece pilgrims and patients came from all over the Mediterranean to the centre of the healing God Asklepios at Epidaurus.

A medical tourist is a consumer of medical services who travels to a foreign country because of the significantly lower cost of medical services there.² In this sense it is market driven: it is the absence of financial resources, either insurance benefits or outright cash, that drive people to seek care elsewhere. People travel to access a full spectrum of services, including cosmetic surgery, dental reconstruction, cancer therapy, eye surgery, gender reassignment operations, and fertility treatments.

Some researchers have described medical tourism as an unhealthy spectre of the future of healthcare and the economic collusion of luxury hotels and spas with international medical centres, offering concierge services to patients, supported by travel agencies throughout the trip.³

Where is it happening?

Hospitals across Asia are vying for a slice of this huge international pie. Singapore and Thailand attract the most medical tourists in Asia.⁴ A recent study by Deloitte Center for Health Solutions concluded that the number of Americans travelling for medical care will soar: from 750,000 last year to 6 million in 2010.⁵ So there is a healthy appetite for this booming industry. The cost of treatments in Singapore, such as a hip replacement, can be less than a third of the price than in the US. In some cases, the cost is less than a tenth of what people would pay in America or Europe.

In Singapore the trade is thriving in private hospitals, which don’t have the restrictions that government hospitals do – so they are able to offer much more to medical tourists.

This year it was announced that hospitals in South Korea will be allowed to directly seek foreign patients, following the introduction of a new law that would allow hospitals to pay commissions to agents for patients they referred. It was forecast that the number of foreigners visiting South Korea for treatment would double to 50,000 per year.⁶

In China, long-standing one-child policies limit most urban Chinese families to just one child. This caused expectant mothers to travel to Hong Kong to give birth to dodge the system – an added advantage was that a child born in Hong Kong would acquire a Hong Kong passport. This gave rise to an industry of “birth tours” run by operators who would charge up to $8,000, including hospital fees, to arrange trips for pregnant women from mainland China to Hong Kong.

Because of the strain this placed on Hong Kong’s public hospital system, the Hong Kong government subsequently introduced a regulated scheme that requires expectant mothers from China to register at an early stage in their pregnancy (prior to the 24th week) with a Hong Kong hospital, be examined by a doctor and book and pay for maternity arrangements and undergo medical examination.⁷

The expectant mother would then need to obtain a confirmation certificate from the hospital which enables her to cross over the border again immediately prior to the birth. Without such a certificate, the expectant mother is not allowed to enter Hong Kong after the 24th week of pregnancy.

Risks

The American Medical Association has not endorsed medical outsourcing and medical tourism. They caution that a lack of legal recourse in case of medical malpractice and doctor and hospital credentials makes medical trips potentially dangerous. This is especially true in that there is currently no international legal regulation of medical tourism; the issue of legal recourse for unsatisfactory treatment across international boundaries is a legally undefined issue at present.8

Other risks are: 

• Artificial doctor–patient relationship 
• Insufficient patient records 
• Uncertainty over handovers and follow-ups
• Litigation in other jurisdictions 
• Obtaining appropriate indemnity.

The “artificial” doctor–patient relationship

A poll conducted by Which? last year reported that in 2006, 80,000 Britons had surgery abroad; of these, 18% of respondents reported health problems and 8% required urgent NHS care on their return.⁹

But it can be argued that there are more inherent risks of disputes over medical tourism: the biggest challenge is the artificial doctor–patient relationship often seen in medical tourism (see Box A).

Another issue is patient autonomy. Does a patient’s right to pursue a procedure in another country where it is not banned make it acceptable? This refers to abortion, assisted suicides, and new treatments such as stem cells. An important aspect of patient autonomy is that of a patient’s right to make decisions about his or her care. Patients can only truly make an informed decision if they have all the relevant facts. It could present problems for a doctor, if a patient asked: “Should I go overseas”, because they won’t know if the hospital is reputable, with accredited staff.

Many complaints and claims dealt with by MPS are related to this issue – “failure to warn”, where patients allege that their consent was not fully informed. For consent to be valid, the patient must be competent, the consent must be freely given and the decision informed. Nowadays, relevant risks not only depend on the doctor’s perspective, ie, that it is rare and therefore unimportant to the patient, but also on the relevance of a specific complication, even if it is rare, to the individual patient. This is well articulated in the Australian case of Roger v Whitaker, where a patient suffered sympathetic ophthalmia and lost the sight in her remaining good eye following an elective operation on her diseased eye. It was successfully argued that the doctor should have warned the patient of that risk to her one remaining good eye.

Another tricky factor is cultural differences. Foreign patients bring with them alternative understandings of how procedures are carried out and performed, and this can lead to misunderstandings and possible complaints. Chris Howse, partner at Richards Butler in Hong Kong, describes an obstetric case where a Japanese patient thought that they had been badly treated by their Hong Kong obstetrician.

“The obstetrician had been busy and kept the patient waiting as they were dealing with an emergency. They did not have enough time to explain this situation to the patient; he simply said: ‘Sorry, I will be with you later.’ To the Japanese, an apology is often taken as an admission of liability and the patient made a complaint about the quality of the obstetrician’s treatment.”

Patient records

Data protection laws applying to countries within the EEA (European Economic Area) prohibit the transmission of patient data to third countries without similar standards of data protection and adequate safeguards. Where necessary, transfer can be made to third countries without adequate protection as long as the patient gives fully informed consent.

In the USA, the Health Insurance Portability and Accountability Act (HIPAA) requires electronic signature, authentication and audit trails for health records; this has impacted on telemedicine, internet healthcare and medical tourism. However, such safeguards do not apply everywhere. A bureaucratic loophole has created a serious problem in Hong Kong, where as previously mentioned mainland mothers travel to Hong Kong to give birth – they have become the largest number of medical tourists.

MPS has observed many cases of these obstetric patients arriving with very limited antenatal records. Mr Howse explains: “The risk to Hong Kong obstetricians is that they will only see patients from the People’s Republic of China (PRC) at a very late stage in pregnancy, the records and scans from the early part are rarely available, and consultation between the patient’s doctor in China and the Hong Kong obstetrician is next to never.”

He recalls a case where a young mainland mother arrived in Hong Kong three weeks before her expected delivery date. There were problems during the delivery: the child survived, but the mother died. There was a risk that proceedings may be started against the obstetrician based on the lack of information about the patient’s previous medical history.

A doctor could be at risk if problems arise and he/she is found to have performed a procedure with insufficient background information or medical records, the availability of which would have averted the original problem.

Box A

Risk factors that hinder the doctor–medical tourist (patient) relationship:

• Culture and language barriers – misunderstandings and misinterpretations
• Patients – high expectations, over-promotion, cost-sensitive, unrealistic recommendations, lack of ownership 
• Doctors – new healthcare, social and legal systems, foreign-trained doctors less sensitive to cultural needs, business rather than altruistic attitudes, accreditation of doctors 
• Follow-up care – more complex problems, test for what is a reasonable standard of care differs 
• Adverse outcomes – legal systems, less forgiving of unmet expectations.

Handovers and follow-up

Following-up foreign patients is another tricky area: how can a doctor follow-up a patient if they return to their country? This could put a doctor in a difficult position if he were to face litigation in other jurisdictions.

According to Mr Howse, problems can be encountered if, for example, a patient returns to Hong Kong after treatment abroad and seeks remedial help from a Hong Kong doctor. “We have dealt with a number of cases where Hong Kong plastic surgeons have treated patients who have presented with serious problems arising from plastic surgery in China.

“Care needs to be taken to explain to the patient what is and is not possible, as it is frequently not possible to rectify the problems that these procedures have caused and this needs to be properly documented. Inevitably the patient’s recollection is that the Hong Kong doctor promised that everything would be perfect again. Without adequate patient notes and consent forms, the doctor is at risk.”

Unpaid hospital bills

There have been more incidences of patients not paying their hospital bills. This presents risk for providers in terms of adverse media coverage and the risk of instigating litigation. MPS has been asked to advise healthcare providers on the litigation risks if the action of chasing these unpaid bills provokes a claim alleging clinical negligence against the hospital and doctors.

Litigation in other jurisdictions

This is a frequent area of concern amongst doctors treating foreign patients. Litigation risks of medical tourism depend on the choice of law, jurisdiction and the ability to enforce a court’s decision in that country. According to Mr Howse, problems can arise if doctors treat patients in clinics in other countries, notably mainland China.

“The risk, both to the doctor and MPS, is the risk of litigation in the Chinese courts. They are unpredictable and could produce a judgment against a doctor in circumstances where the doctor has no liability, or for an amount which is in excess of the liability that a doctor might have, particularly if it is known that the indemnifier will pay any judgment.”

Another issue is that the tests of acceptable standards of care will differ from one country to another. The Bolam test, for example, can no longer be assumed to be the accepted test of a reasonable standard in every jurisdiction, as this is a legal principle, not about the standard of medical care.

American lawyer Kerrie Howze highlights an emerging litigation risk if an American patient goes to, for example, Macau for a specific procedure: the courts may decide to follow the rule in the minority of American jurisdictions, namely Hawaii and New York, that imposes that duty of informed consent on the referring doctor, not the treating one.¹⁰

Box B

MPS protection strategies:

• Contract details should include the agreed jurisdiction in the event of a claim
• Check that adequate cover is provided by the indemnifier
• Check registration requirements of doctors
• Check credentialing requirements of hospitals
• Have a local primary physician refer patients 
• Comply with local Medical Council guidance and standards
• Be aware of emerging risk patterns 
• Screen patients – unrealistic expectations?
• Allow extra costs in negligence claims overseas
• Seek advice from protection organisations early.

Profesional indemnity

Local indemnity requirements must be complied with; doctors must check whether their indemnity arrangements cover international practice or treating international patients. MPS will usually extend indemnity on request, provided you inform them in advance of the details of the service if you have plans to expand your international practice. Their approval will depend on the facts of each application, such as whether the necessary registration has been obtained, and whether there are additional risks involved.

MPS does not cover practice that is unlicensed or outside professional registration. The only safe advice is to make sure that you are registered in every country in which you practice. Many medical defence organisations do not provide indemnity for professional undertakings in the USA or Canada. MPS does, however, offer access there to medicolegal assistance for students on their electives and for good Samaritan acts.

Conclusion

Medical councils are beginning to look at the tricky doctor–patient relationship created by medical tourism, but it is in the early stages. It is clear that patient expectations need to be drawn in line with reality, so that doctors do not bear the brunt of misunderstandings.

Thanks to Chris Howse and Raja Eileen Soraya for their help with this article.

References

1. Birch, Don. ABACUS (2006)

2. Howze, Kerrie S. Note; Medical tourism: Symptom or Cure? Georgia Law Review 41(3): 1013-51 (Spring 2007)

3. Herrick, Devon M. Medical Tourism: Global Competition in Healthcare, National Centre for Policy Analysis, report no. 304 (November 2007)

4. www.medicaltourismguide.com

5. Deloitte Center for Health Solutions

6. South Korea sees medical tourism boom under new law, eTurboNews.com (Apr 28 2009)

7. Fowler, G and Qin, J, Hong Kong’s baby boom, The Wall Street Journal (1 February 2007)

8. India Profile, Medical Insurance and Legal Aspects, (2007)

9. BBC News website (30 March 2008)

10. Ibid. 2

References

1. Northern Territory Magistrates Courts. Inquest into the death of Peter Limbunya. Darwin, NTMC 057, 2008.

2. World Health Organisation. Action on patient safety – High 5s, (2009)

3. Bomba DTPR. A description of handover processes in an Australian public hospital, Australian Health Review (2005)

4. NPSA, Safe handover: Safe patients, BMA (2004)

5. GMC, Good Medical Practice (2006) par 48

6. Jeffcott, S A. et al. Improving measurement in clinical handover, Quality and Safety in Healthcare (2009)

7. McCann, L et al. Passing the buck: Clinical Handovers at a New Zealand Tertiary Hospital, NZMJ (2007)

8. Singh, H et al. Medical Errors Involving Trainees, Archives of Internal Medicine, USA (2007)

9. Royal College of Surgeons, EWTR Summary of Responses to College Survey, (2009)

10. Department of Health. The Implementation and Impact of the Hospital at Night Pilot Projects: An evaluation report, London (2005)

11. Iedema, R and Merrick, E et al. Handover – Enabling Learning in Communication for Safety (HELiCS: A report on achievements at two hospital sites, MJA (June 2009)

12. Royal College of Surgeons of England, Safe Handover: Guidance from the Working Time Directive Party (2007)

13. Stevens, D P. Handovers and Debussy, Qual Saf Health Care USA (2008).