Victoria Williams, a senior associate in the Clinical Negligence department at Stewarts, and Polina Sokolovska, a paralegal, explore this question below.
This article aims to:
- examine the rise in so-called “medical tourism”,
- give an overview of the methods by which an individual can bring such a claim in the English and Welsh courts, and
- briefly outline when a claim for negligent treatment abroad can be brought under the Package Travel Regulations.
“Medical tourism”
As NHS waiting times continue to soar, increasing numbers of Britons requiring surgery, such as cardiac or gastric surgery, travel overseas to receive their long-awaited medical treatment. The media has coined the phrase “medical tourism” when describing such trips.
The headline of a Guardian article published in January 2023 reads: “’It’s not medical tourism, it’s desperation’: rising number of Britons resort to treatment abroad.” The article tells the story of Cathy Rice, who was 68 at the time. She travelled to Lithuania for knee replacement surgery at a fraction of the cost of private healthcare in the UK after the NHS told her there would be a three-year wait for her operation.
Fortunately, Cathy’s surgery was performed without complications. Not all Britons travelling abroad for medical treatment have the same experience. The rising number of treatments in Turkey that have gone wrong has led the government to update its Foreign Travel Advice. Enquiries received by Stewarts show that negligent medical treatment of Britons abroad is not limited to Turkey and can occur in any number of countries across the globe, from Europe to Asia to America.
Ways of bringing a claim in the UK
The rules relating to bringing a cross-border claim (for example, when the person bringing the claim is from one country, but the situation that gave rise to the claim happened in a different country) are complex. It is important to seek legal advice as soon as possible because, depending on which country’s laws apply, the amount of time you have to bring your claim can vary significantly.
When there is an international element to a claim, such as outlined above, the English courts need to “accept jurisdiction”. This means they need to agree that based on a mixture of international and domestic laws, England is the correct place to hear the claim. Being a British citizen does not guarantee you can bring a claim in your local courts.
Briefly, there are four main situations in which the courts of England and Wales will “accept jurisdiction” in a claim for negligent treatment abroad:
- A contractual claim under Civil Procedure Rule (CPR) Practice Direction 6B. The starting point is always to check the contract. It will sometimes contain a clause that nominates the English courts to hear any disputes arising from the contract and/or state that English law should govern the contract. In both situations, the English courts will be considered the appropriate forums to hear the claim.
- A consumer contract claim under section 15E of the Civil Jurisdiction and Judgments Act 1982. In summary, this applies when the services in question clearly targeted consumers in the UK. This question is determined by looking at several factors but a few situations that can indicate this section applies are when the website advertising the surgery abroad was fully in English or the contact number given started with (+44).
- A tort claim (a claim relating to an injury that cannot be brought based on a contract) under CPR Practice Direction 6B. You can bring a claim in the UK if you started to experience some of your symptoms in the UK or if the court decides English law applies to the claim (according to a separate set of rules).
- A claim under the Package Travel and Linked Travel Arrangements Regulations 2018 (“the Regulations”). These regulations were passed in England and Wales to implement the EU Package Travel Direction 2015 and form part of the retained EU law. If you can establish that these apply to your claim, the English courts will likely be able to hear your case. English law is also likely to apply then.
This article explores the fourth option in more detail below.
Package Travel Regulations
The Regulations apply when two or more travel services are sold together for the same holiday. Section 2(1) of the Regulations defines travel services as either (a) the carriage of passengers (for example, a flight or a train journey), (b) provision of accommodation, (c) rental of cars, certain motorcycles or other motor vehicles, or (d) “any other tourist service”.
If your surgery abroad was sold in a package with a stay in a hotel and return flights, it is fairly certain you can bring a claim under the Package Travel Regulations. The difficulty arises when a surgery is paired with only one of those services. For example, a common scenario is where you were only provided accommodation after the surgery but had to buy your own flights.
This difficulty stems from the “any other tourist service” category (option (d) out of the list of “travel services” in section 2(1)) being poorly defined in the Regulations. There has not yet been a “binding” court decision in England and Wales (a decision that all lower courts need to follow) on whether surgery or another medical treatment would fall into this category. This question remains the subject of academic debate and a source of dispute between legal teams in such claims.
Polina Sokolovska co-authored an article with Ian Denham of Outer Temple Chambers exploring English and European court decisions and laws in search of any non-binding indications about whether medical treatment can be a standalone travel service within a package. This article is due to be published in the Journey of Personal Injury Law, an academic journal for practitioners in personal injury and clinical negligence. Follow this website and Stewarts’ social media platforms for more details.
Importance of seeking prompt legal advice
If you have sustained negligent medical treatment abroad, please seek legal advice as soon as you can. As mentioned above, there are time limits on bringing claims, which vary significantly in different countries. Early legal advice can insure you against the risk that you could be out of time to bring a claim in the country most appropriate for hearing your claim.
You can find further information regarding our expertise, experience and team on our Clinical Negligence pages.
If you require assistance from our team, please contact us.
Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.
