Q: A few of our clients have recently been asking if we would arrange travel in connection with medical procedures abroad. The clients have heard that they can save tens of thousands of dollars on major and even minor surgery at very good hospitals in India, Mexico, Thailand, Turkey, Brazil and the Bahamas, for example. If we went ahead with such arrangements, would there be more legal risks involved in selling such travel than in, say, selling tours and resorts in those countries? If so, how can we adequately protect ourselves against such risks?
A: In theory, your liability is the same no matter what kind of travel you arrange: You are liable for your own negligence and breach of contract. However, in practice, you are more likely to get sued if there is a bad outcome in a medical procedure that you helped arrange than you are if something goes wrong on a tour or at a resort.
If a doctor abroad commits malpractice, most U.S. attorneys that specialize in medical malpractice will realize that they cannot get jurisdiction over the foreign defendants in a U.S. court. Therefore, they will try to sue all the U.S. companies involved, such as your agency, in order to try to get as big a settlement as they can even if the U.S. companies would ultimately be found not liable.
A U.S. plaintiffs' attorney might also try to associate with an attorney in the country where the malpractice allegedly occurred in order to sue there. However, the U.S. attorney would quickly find that there are no significant medical malpractice recoveries in most countries of the developing world, thus making it even more likely that you will be sued here.
Most countries' legal systems do not permit lawyers to sue on contingency fees. Foreign courts are usually slow and cumbersome compared to U.S. counterparts. Damages awards are geared to the much lower standards of living in countries with low-cost medical procedures.
So, to deter suits against your agency, or to win them if you get sued, you need to take these four steps whenever you sell travel in connection with medical procedures abroad:
First, make sure that your client signs a disclaimer stating that you are not endorsing any medical providers and that the client releases you from all claims related to the procedure. You can find such a disclaimer at www.pestronk.com/free.html under "Medical Travel Disclaimer and Release."
Second, instead of making the travel arrangements on your own, you should use a reputable U.S. operator specializing in medical tourism. Such companies can make all the special arrangements with airlines, hotels and ground operators needed for impaired or recuperating travelers, and they offer commissions like any other nonairline supplier.
Third, make sure that the medical tourism operator agrees in writing to indemnify your agency against all claims for anything that happens during the trip. The operator should also agree to pay your attorneys' fees in case you get sued.
Fourth, offer a medical tourism insurance policy that covers the costs of post-treatment complications and emergency evacuation to a U.S. hospital if something goes wrong. If the client declines, require the client to do so in writing, so that the client cannot later deny that you offered insurance.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].