Medical Tourism and Goodbye
One part of my currently scholarly project (the other focuses on reproduction) concerns medical tourism — the travel of patients from one country (the “home country”) to another (“the destination country”) for the primary purpose of receiving medical care.
As I detail in this just-published paper in the Iowa Law Review, Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument (the final version is now up on SSRN), the motivations and demographics of medical tourists (or less colloquially “cross-border care consumers”) are heterogenous: Some are uninsured or underinsured patients seeking cost savings (in some cases upwards of 80% savings compared to U.S. prices) on procedures like hip replacements or cardiac bypass by seeking them in countries like India or Thailand. Some are part of a growing industry of what I call “insurer-prompted medical tourism” — individuals who have insurance but whose insurers incentive (or at least theoretically require as a condition of coverage) travel abroad. There have even been attempts (a bill that died in the West Virginia legislature, proposals for Medicare/Medicaid) to have what I call “government-prompted medical tourism” where state health insurance schemes incentive (or much less plausibly require) travel abroad for health care.
As I discuss in the Protecting Patients with Passports, these types of medical tourism raise significant legal and ethical issues. Domestically we treat advance contractual waivers of medical malpractice rights as unenforceable, such that you can’t bargain for a better price with your doctor by waiving those rights, even in the extreme case where you might not be able to afford the surgery without that price discount. How should we feel about the way in which medical tourists will (due to several interlocking facets of American civil procedure, and sharply less remunerative foreign law) essentially de facto waive medical malpractice recovery rights by seeking care abroad in order to achieve costs savings? How should we regulate the insurer-prompted medical tourism market? Does the existing state insurance architecture of PPO and HMO regulation suffice? What about self-insured plans? What are the dynamic effects on U.S. health care markets of competition from medical tourism centers? What are the effects of medical tourism on health care access in the destination country and should they matter to us? How will the recent Obama health care reform initiatives change the playing field. I try to take up many of those questions in this paper. I’ve also discussed some of these issues on PBS, and you can find the clip here.
All of this concerns medical tourism for services that are legal in both the home and destination countries. There is also medical tourism for services illegal in the home country but legal in the destination country (e.g., abortion tourism, reproductive technology tourism, euthanasia ‘tourism’, stem cell therapy tourism) and for services illegal in both places but with grey or black markets in the destination country (e.g., organ tourism). Here we face questions of whether the home country should extend its domestic criminal prohibition extraterritorially in the model of the Protect Act (child sex tourism) and other examples. There are also hard questions about the obligations of doctors in the home country as to patients who have returned with illegally purchased organs, as well as their obligations to inform or not inform patients about the option of going abroad. I’ve briefly touched on some of these issues in this short paper Medical Tourism: The View from 10,000 Feet, in the Hastings Center Report (a leading bioethics journal). I am just starting to write a longer piece that looks at normative justifications for extending a state’s criminal law extraterritorially, and what they can tell us about medical tourism for services legal in the destination country but not the home country of the patient. Perhaps the next time I blog I can tell you what I have learned.
Thanks to the crew at Concurring Opinions for having me the last few weeks. And thanks to all the commentators for their great engagement and suggestions.