The medical tourism industry is growing at an exponential rate as medical tourists seek shorter wait times, lower costs, specialist private medical treatment and innovative medical technology. The most common procedures sought abroad include orthopaedic surgeries, bariatric (obesity) surgeries, cardiac treatments and neurological procedures, including spine and brain surgeries.

Senior associate Victoria Williams and associate Olivia Shaw explore the challenges of medical negligence cases in a cross-border setting as well as the key takeaways for medico-legal experts.

What are the risks of having medical treatment abroad?

Obtaining informed consent is fundamental before any medical procedure. Treatment abroad is often booked without meeting the treating consultant/surgeon, and usually, there will be little time before the treatment once the patient arrives in the host country. This can put patients at a disadvantage if all the potential risks of the procedure are not fully discussed.

In a cross-border environment, patients may be unfamiliar with their surroundings and unable to speak the native language. They may not fully understand consent forms presented immediately before the procedure but feel under pressure to sign them and get on with the procedure they have paid for. Any language barrier presents a huge risk as patients may not feel confident enough to ask for a translator or English versions of the paperwork.

Aside from any risks during the surgery or treatment itself, a further frequently occurring risk of cross-border treatment is the failure to provide adequate emergency care or aftercare to patients. This can sometimes lead to infection and other complications. Emergency care varies between countries, and in the event of a serious complication, it can be critical to a patient’s survival. Many cross-border consumers will be expected to return to the UK within a few days of surgery, irrespective of any symptoms they may report after their treatment. This delay can create its own risks.

Key differences in cross-border medical negligence claims

A cross-border setting brings various challenges for the legal team and medico-legal experts to overcome. The key points to consider are as follows:

  • Applicable law: The general rule is that the applicable law is the law of the country where the tort (medical negligence) occurred. This will govern the time in which a claimant can bring a claim, the liability of the medical professional/hospital in that country and the assessment of a claimant’s damages.
  • Limitation: The time in which a clinical negligence claim can be brought varies between jurisdictions. In England and Wales the limitation period is usually three years from the date you had knowledge of the negligent medical treatment. In other European countries, the limitation period can be as short as one year or as long as 10 years, depending on the country, defendant and cause of action. Where the medical treatment took place abroad, it is important to carry out investigations at an early stage to ensure the deadline is not missed.
  • Documentation: A patient’s medical records may be in a different language and require translation. In medical negligence claims, the medical records are a vital part of an investigation into a potential claim to identify possible breaches of duty and details of the injury in question. Records will need to be translated, which can be costly and take time.
  • Standard of care: This can vary significantly across different countries and regions, reflecting diverse legal, cultural and medical practices. England and Wales is a common law jurisdiction whereby the standard of care is determined by case law and expert evidence. It typically requires medical professionals to act in accordance with the practices of a reasonably competent peer in similar circumstances, which is supported by expert evidence. In many European countries, the law is codified, and there is no (or little) system of precedent. Evidence will rely on statutes and regulations, including the articles of the civil code. References to case law tend to be for illustrative purposes only.
  • Local prevailing standards: Many jurisdictions have specific guidelines published by medical associations or government bodies that outline acceptable practices. Adherence to these guidelines can influence what is considered the standard of care. This can lead to variations in what is deemed acceptable practice in different contexts.
  • Cultural attitudes: Standards of care can be influenced by cultural attitudes towards health, treatments, medical professionals and patient interactions. In some cultures, there may be a greater emphasis on paternalistic approaches to care, while others may prioritise informed consent and patient autonomy.
  • Assessment of damages: Different jurisdictions have different schemes to assess compensation levels based on pain and suffering, loss of earnings and future medical costs. For example, some jurisdictions rely on precise mathematical formulas, while others use a more discretionary approach based on judicial precedent.
  • Experts: In a clinical negligence claim in England and Wales, expert evidence is crucial to establishing the standard of care, and there will usually be a multitude of experts involved to identify breaches of care and assist in assessing damages. In a cross-border context, a judge may rely more on established medical norms and there may be one expert who will cost all future medical treatments and therapies.

What are the considerations for experts in medical negligence abroad claims?

Medical negligence claims are complex and cross-border make claims even more complex. A case involving both is likely to be complex and require consideration of unusual issues and thinking outside the box.

Medico-legal experts will rely on their instructing solicitor to provide clear instructions on what is required of them. An expert has to be comfortable that they can comment within their expertise or comment factually. They will often need translated medical records and information on the foreign law, local standards and cultural considerations.

There will need to be flexibility, as there will be different considerations to take into account. It will not always be as clear-cut as establishing a breach of duty and causation of injury. The standard of the foreign treatment may have a lower bar, and there may be different ways of calculating a claimant’s future losses.


 

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.

 


 

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