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.

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9 Responses

  1. Matt Lister says:

    This sounds interesting and important, Glenn. Is there much research on whether this sort of “tourism” hurts access to medical care in destination countries? I could imagine it doing so, by driving up costs and using resources in the country, but on the other hand, we might expect this increased demand to lead to more providers in the destination country, too, perhaps stabilizing things and maybe even improving care over-all.

    Thanks as well for the interesting set of posts. I’ve enjoyed them!

  2. Glenn Cohen says:

    Thanks Matt. As it happens, I presented a paper at a conference in June (that I’ll hopefully soon have ready for publication) on exactly this question.
    While by plumbing the developmental economics literature one can specify triggering circumstances that would make a negative effects from medical tourism on destination country access to health care more likely, and while one can find authors making these claims and some anecdotal evidence for the effect (esp in India), I have yet to find any empirically rigorous demonstrations of the effect.
    Even if the effect was demonstrated, there are a set of interesting normative questions of whether this should create an obligation on the part of home countries (or international organizations) to prevent some forms of medical tourism due to this negative effect. In the draft paper I also canvass Statist, Cosmopolitan, and Intermediate theories of global justice and examine how plausibly they can ground such an obligation.

  3. David Young-Cheol Jeong says:

    Prof. Cohen,

    First of all, thanks for the post on RA. It was helpful.

    As Korean doctors are also promoting medical tourism, let me point out several aspects of it from a different perspective. It is not clear whether the regulatory authorities are actively supporting this move. They might be concerned about the regulatory arbitrage, potential liabilities, shortfall of medical services for domestic patients. Their approach seems to be neutral. The reason doctors are eager to promote tourism especially for Koreans living overseas home countries seems to be extensive national insurance coverage in Korea. Most treatment for most patients are covered by national insurance and thus fixed fees. Charges for tourists are not regulated. Thus, they can become a source of real profits.

    Doctors can enjoy more profits. However, hospitals are all not-for-profit entities in Korea. Then, why more profits from overseas patients? More salaries to interns and doctors. More capital expenditure to new equipments. More support for researches. More aggressive recruitment of medical students and doctors. More beds for more patients. And, many more reasons.

    Are they really risky? I believe risks are much less than you might imagine. In the case of Korea, I understand most patents are regular check-ups and standard treatment. For hard cases, patients would not travel to overseas for lack of time and confidence. I am also not convinced why states should make a decision on behalf of patents on their health. I was told from my friend most patients are still limited to Korean Americans who do have communication problems in the States. During their visit to Korea during holidays, they want to have regular check-up and cost is nominal compared to that in the States for the same services. We need statistics, of course.

    As for legality of certain treatments, it might be interesting to think about the overseas manufacturing activities at lower wage, lower occupational safety and health standards, or lower environmental regulations and enforcement. As for multi-nationals which run shirt or gym shoe factories in China, Guatemala or Cambodia, we, corporate law professors, are talking about CSR. The only international treaty is for anti-bribery, which has not been effectively enforced. If you can establish the basis on criminal liabilities for rendering medical services, it might be applicable to multi-nationals who buy labors in violation of their home country laws. Again, the punishment should come from the home country.



  4. A.J. Sutter says:

    Thanks to Matt for bringing up the issue of the impact on the destination countries. I live in Japan. In its “New Growth Strategy” of June 2010 the government announced its intention to make Japan a leading medical tourism destination, for the sake of growing GDP. That will attract visitors — and, more importantly, doctors — only to the major metropolitan areas of Tokyo and possibly Osaka-Kyoto or Fukuoka (closest big city to China and Korea). The government is also talking about opening up the country to foreign doctors in order to facilitate this plan.

    At the same time, most regional prefectures have shortages of doctors — and the government isn’t doing anything to alleviate them. By “regional,” I mean at least 34 out of Japan’s 44 prefectures. My sister-in-law was for a long time one of only two orthopedic surgeons in Tochigi, a rural prefecture about 2 hours’ drive north of Tokyo. When she moved back to Tokyo for personal reasons, they couldn’t replace her. (She commuted there for two days a week for more than a year after moving.) In my part-time home prefecture of Iwate, there was a recent scandal when a cardiac “doctor” with a fake diploma was hired at a small city hospital that was desperate for help; another is served by a heart specialist who commutes from Yokohama (6 hours away by car) twice a month. The regions BTW have a disproportionately elderly population — many younger people have to move to Tokyo, Osaka or Nagoya metro areas to find work.

    My sister-in-law, and, she says, many other doctors, oppose the government policy. But she currently works as an employee of the national government, and can be reassigned at any time to handle medical tourists. In that case her only recourse is to quit. English-speaking doctors within the Japanese system are already being scouted to come to Tokyo for the medical tourism industry. But the current party in power has been criticized by the right for being weak on economic growth, so the policy is unlikely to change any time soon. Aside from the clear illustration of the contradictions between GDP and well-being afforded by this example, one has to wonder whether this really will create the 2.84 million jobs and ¥50 trillion (roughly $550 billion, at recent rates) in demand by 2020 that the government projected shortly before their defeat in this summer’s mid-term election.

  5. A.J. Sutter says:

    PS: The obvious corollary to the situation in Japan is that before “canvass[ing] Statist, Cosmopolitan, and Intermediate theories of global justice” to see whether “home” countries can be held liable for degradation of care in destination countries, one should consider whether, or under what conditions, a destination country government that encourages medical tourism is being just to its own people.

  6. Glenn Cohen says:

    A.J. thanks for the comment. While I agree with you that the destination country’s responsibilities in its own regulation of medical tourism matter, I think it is actually a matter of moral theory itself how much they matter in shaping the obligation of the home country in this regard.
    In the draft paper (which I am happy to share with interested readers) I call this the “self-inflicted wounds” issue.
    As I discuss, on some theories — Norman Daniels’ work in “Just Health” (2008) for example) — we ought to (loosely speaking) first factor out what elements of health inequalities are due to failures of the destination country to regulate, and only to the residual health unjust inequalities do global justice duties attach (under certain circumstances). As I further discuss in the draft paper, one thing that may be important here is whether the destination country’s opening up of their health care system to medical tourism is a completely free choice or whether it is in part an element of somewhat coercive trade policies (here most relevantly the GATS agreement) — which forces on us further difficult questions of when participation in trade agreements is sufficiently voluntary by the destination country, the circumstances of destination country’s ratification of the agreement, and when individuals across generations can be bound (in terms of what is owed to them) by trade agreements entered into by their ancestors when such agreements have large penalties for exit.
    On other theories — some version of Comsopolitan Utilitarianism, for example — since membership in a nation state is morally arbitrary in terms of what one is owed, the fact that your nation state has not taken the requisite steps to mitigate the harms may make its actions unjust but does not diminish the obligations of members of other countries. Still other Cosmopolitan theories — Martha Nussbaum’s work in Frontiers of Justice for example — might be read to suggest that obligations of justice are overdetermined and that both the domestic government and the governments of other countries may have obligations running in parallel. There are still other complications and variety.
    All this is to say that your raising of the self-inflicted wounds issue is a good one (indeed it is a central preoccupation in the draft paper) but that in my view the relevance of the objection and its effects on the obligations of home countries depends upon (rather than preceeds) the hard global justice theoretical disputes.

  7. A.J. Sutter says:

    Thanks for your reply. Maybe my use of “before” in my PS wasn’t clear: I wasn’t raising the destination country issues in the context of how they bear on “the” justice question regarding the home state’s obligations, i.e. as some sort of first step in the analysis of those obligations. I meant “before” in the sense of what’s more important in the big picture. My point is that there’s more than one justice question, albeit one of them is domestic rather than global — and, at least in Japan’s case, the domestic one is very urgent.

    The GATS issue is a great (global) point, but in the current instance opening up to medical tourism is a free choice by the Japanese government. And in theory, even if coerced by GATS, there’d nothing to prevent them from both encouraging medical tourism and beefing up health care in the regions. The domestic justice issue is that they’re doing only the first of those, and consequently further undermining the health of millions of citizens here. For those of us who live here, puzzling out the culpability vel non of “home” countries is a waste of time.

  8. Medical Tourism has experienced a high growth rate in the recent past and one of the most important factors contributing to this is the standardization of medical procedures, practices and equipments. Organizations, government bodies and medical institutions have been trying to set up some global standards and have been successful to a large extent. Today specialist doctors often travel to foreign countries to get acquainted with their medical practices and this helps to spread the knowledge. Global availability of prescription drugs, use of standard medical terminologies, helps doctors to create benchmarks for their service.

  9. Anuj says:

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