Jul 27 2012
Little is said in response to the question of what happens when something goes wrong during a medical tourism experience. While some foreign court systems are similar to the U.S. court system, the redress for medical malpractice is not similar at all. In many of the top medical tourism destinations medical malpractice laws are either not enforced or non-existent. On the other hand, U.S. patients that attempt to sue foreign providers in a U.S. court will also struggle in overcoming obstacles pertaining to service of process, personal jurisdiction, choice of forum, and the enforcement of judgments.
The first step for the medical tourist that has experienced an injury due to a foreign provider’s negligence is to serve the provider with notice of the lawsuit. For litigating a matter in a U.S. court proper service of process on a foreign defendant is extremely important. Rule 4(f) of the Federal Rules of Civil Procedure governs the international service of process. According Rule 4(f)(1) an individual may be served at a place not within any judicial district of the United States by an internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
The first inquiry in the international service of process is whether the country where the foreign provider is to be served is a signatory party of the Hague Convention. If the country where the foreign provider is to be served is a signatory party of The Hague Convention then U.S. litigations it is mandatory that the methods set forth in the Convention are used. If service is provided by a method not provided for in the Convention then the service will be considered ineffective which could lead to a dismissal of the case. The principal method of service provided in the Convention is the transmission of documents through the Central Authority. Every signatory party to the Convention must designate a Central Authority.
If a country is not a signatory party of the Hague Convention, Rule 4(f)(2) governs the service of process. Rule 4(f)(2) states that if there is no internationally agreed means a method that is reasonable calculated to give notice as (a) prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction (b) as the foreign authority directs in response to a letter rogatory or letter of request or (c) delivering a copy of the summons and of the complaint to the individual personally or using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; unless it is prohibited by the foreign country’s laws. According to this rule the medical tourist may mail the notice to the foreign provider as long as it is not prohibited by the foreign country’s law and the country is not a signatory party to the Hague Convention. After successfully securing service of process on the foreign provider the medical tourist can then gather all-important evidence to prove their case.
The medical tourist will also have to overcome the personal jurisdiction obstacle. U.S. courts are reluctant to assert personal jurisdiction over a physician who neither reside not practice in the state where the court sits. Unfortunately U.S. courts have yet to resolve the personal jurisdiction issue over a foreign provider that has injured a U.S. medical tourist. In assessing a personal jurisdiction claim against a foreign defendant, U.S. courts usually apply the long-arm statute of the forum state or the federal requirements of the Due Process Clause. Many states have long-arm statutes that permit their courts to exercise personal jurisdiction over nonresident defendants who transact business in the state or who regularly solicit business in the state. Under the federal Due Process Clause analysis, “minimum contacts” must exist between the foreign provider and the forum. Also, the extension of jurisdiction must not offend traditional notions of fair play and substantial justice. if a foreign provider purposefully directs activity to the forum state or “purposefully avails” himself of the privilege of conducting activities in the forum state, a U.S. court may assert personal jurisdiction. One way that foreign provider may purposefully avail himself to a U.S. forum is via the Internet. If the foreign providers website only provides information and have no interactive content then they would not constitute the purposeful availment sufficient to establish jurisdiction. However, if the website is interactive and solicits personal information or leads to personal contact with the injured medical tourist, this may be sufficient to establish personal jurisdiction.
If the medical tourist is successful at getting past the service of process and personal jurisdiction issues, it is highly likely that the foreign provider with make a motion to dismiss based on forum non conveniens. Forum non conveniens allows a court to decline to exercise jurisdiction and dismiss a case where the case would be more appropriately brought in a foreign jurisdiction. The party moving to dismiss based on forum non conveniens bears the burden of showing that there is an adequate alternative forum and that the balance of private and public interest factors favor dismissal.
When the medical tourist has successfully won his claim against the foreign provider after overcoming the service of process, personal jurisdiction, and forum non conveniens obstacles, he must attempt to have the foreign country enforce the judgment against the provider. If the foreign provider is not in the U.S., there is little that the U.S. court system can do to ensure that the provider pays the tourist. Therefore the medical tourist must look to the foreign providers country to have it enforce the judgment against the provider.
In the U.S., the New York Convention governs the recognition and enforcement of most foreign arbitral awards. The U.S. ratified the New York Convention with reservation that it would apply the Convention on the basis of reciprocity to the recognition and enforcement of only those made with another Contracting state. Although the New York Convention governs the enforcement of foreign judgments in the U.S there is no single convention that governs the international enforcement of judgments from courts. Also, every country is not a part of the New York Convention. Nonetheless, today most courts continue strictly to interpret their requirements for judgment enforcements. These courts follow the view that, in the absence of a treaty, a foreign nation’s judgment will not be enforced unless local law requirements are clearly met.
Although medical tourism has it perks, it also has its downfalls. In the event that something goes wrong many medical tourist are left with little legal recourse. It is imperative that all medical tourists think things thorough before traveling across the world for a medical procedure. It is important to consult with an attorney and discuss what is will happen in the event that things do go awry. Planning ahead will decrease the chances of being faced with the obstacles mentioned above leaving the medical tourism experience a pleasant one.
Sources: Khoury, A., Beware of International Service of Process. 2010. http://www.martindale.com/international-law/article_Awad-Khoury-LLP_1137040.htm. Accessed July 2012.
Cueto, Santiago A., 7 Steps to Effectuate International Service of Process under the Hague Service Convention. International Litigation. http://www.internationalbusinesslawadvisor.com/2010/02/articles/international-litigation/7-steps-to-effectuate-international-service-of-process-under-the-hague-service-convention/. Accessed July 2012
Mirrer-Singer, P., Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism. Law and Contemporary Problems Vol, 70;211; 214.2007. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1428&context=lcp&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dmedical%2520malpractice%2520overseas%2520the%2520legal%2520uncertainty%2520surrounding%2520medical%2520tourism%26source%3Dweb%26cd%3D1%26ved%3D0CEQQFjAA%26url%3Dhttp%253A%252F%252Fscholarship.law.duke.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1428%2526context%253Dlcp%26ei%3Dv5kEUMOVEsqqrQGj87TRCA%26usg%3DAFQjCNFeaTaWcQSSV9Cksbf8qIbNewoHDQ#search=%22medical%20malpractice%20overseas%20legal%20uncertainty%20surrounding%20medical%20tourism%22 . Accessed June 2012.
Cortez, N. Recalibrating the Legal Risks of Cross-Border Health Care. Yale Journal of Health Policy, Law, and Ethics 4, 10. 2010. http://www.tseed.com/aslme/conference/data/papers/044.pdf accessed June 2012.
Howzie, K., Medical Tourism: Symptom or Cure?. 41 Ga. L. Rev. 1013, 1036 (2007). https://www.lexis.com/research/retrieve?_m=099d7d2ff5bd6e64abf418fc38a06973&csvc=le&cform=byCitation&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzk-zSkAW&_md5=17e181dd7b50b3f4a0ca9c823611cdd3. Accessed July 2012.