Jul 16 2012
Medical Malpractice in the Medical Tourism World
When patients opt to travel to a medical tourism destination they are typically more concerned with the medical risks and errors that may be involved. But, unfortunately these patients often overlook the legal risks that they may bear if something goes wrong. With the increased use of disclaimers, waivers, and other contractual devices patients are often unaware that there is very little legal recourse options available to them. It is also difficult for medical tourism patients to accurately appraise the legal risks involved because it unclear whether foreign patients can recover in their home courts for medical malpractice committed overseas.
Thailand is one of the medical tourism destinations that make it extremely difficult for Thai patients and foreign patients to file medical malpractice lawsuits in the country. Although Thailand is a well-established travel destination that attracts a large number of patients medical malpractice suits are very much frowned upon. Based on Buddhist principles like karma, Thais rarely pursue formal recourse because they believe that an assertion of legal rights may ultimately prolong conflict and contribute to suffering, misfortune, and distress. There are no statutes that specifically address medical malpractice in Thailand because it is a civil code country.However patients may seek a legal course of action under the “wrongful act” provision in the Thailand Civil and Commercial Code.
Once a patient decides to file a medical malpractice claim they will be faced with a myriad of obstacles. The first obstacle is obtaining the patients onw medical records. In Thailand patients are not allowed to access their own medical records to file a medical malpractice suit. This makes it extremely difficult for any patient to prove their case. Because of the lack of medical malpractice jurisprudence in Thai courts, cases typically settle due to being caught up in court procedure.
For the foreign patient, the Thai legal recourse system may be a very unrealistic option. On top of the obstacles that the Thai patient is faced with the foreign patient is also forced to deal with the very complicated Thai court system. In the Thai court system judges, instead of juries, are utilized. Everything including oral and documentary evidence must be translated into the Thai language. This may deem I very difficult for the foreign patient to understand and follow what is going on in court. In the case where the foreign patient is able to get a U.S. court to assert personal jurisdiction over a Thai provider, the foreign patient will continue to have difficulty enforcing a U.S. judgment in Thailand.