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Cohen on Medical Tourism

By Lawrence Solum

I. Glenn Cohen (Harvard Law School) has posted Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument (Iowa Law Review, Vol. 95, No. 5, 2010) on SSRN. Here is the abstract:

In this Article I examine ?medical tourism? - the travel of patients who are residents of one country to another country for medical treatment - which is fast becoming a multi-billion dollar industry. To date, the primary U.S. medical tourists appear to have been uninsured or underinsured Americans seeking substantial cost savings by traveling to less developed countries for care. More recently, state governments, self-insured firms, Fortune 500 companies, and domestic insurers, have begun attempts to get their insured populations to use medical tourism as well by requiring it or giving incentives for the use (what I call ?insurer-prompted medical tourism?).

There is, however, a dark side to the growth of this industry. In this Article I set out a taxonomy of concerns posed by medical tourism that includes concerns about the effects on healthcare access of the poor in the destination country and concerns about the circumventing of prohibitions on the provision of certain services in the patient?s home country. Here, I focus on one particular set of problems: concerns about protecting U.S. patients who go abroad to receive treatment. The fear is both that these facilities provide poorer quality care as compared to their American counterparts and that elements of U.S. civil procedure when combined with the substantive medical malpractice law of the countries where treatment is sought will mean that medical tourists face a diminished likelihood and extent of recovery should medical injury result.

After setting out these concerns, the main work of this Article is to examine how we should respond and what tools are available for intervention. While an analogy to the domestic prohibition on waiving medical malpractice liability by contract might lead one to think U.S. governments ought to discourage medical tourism outright, I argue for a more permissive approach. Particularly for un/underinsured medical tourists, whose counterfactual may be no access to certain non-emergency care at home, I argue that attempts to discourage medical tourism outright are normatively problematic and the practice can be distinguished from the ban on contractual waiver. While I argue for information-forcing interventions to assist this population in making decisions about medical tourism, I justify the rejection of attempts to restrict choice either directly or through what I call ?channeling interventions.?

Turning to the emerging phenomenon of insurer-prompted medical tourism, I describe the different shapes that these insurer initiatives can take. I then demonstrate how agency problems in both individual market and employer-sponosred health insurance in the U.S. make insurer-prompted medical tourism more of a concern. Nevertheless, I explain why outright prohibition through the use of state-level insurance mandates (as Texas has attempted) are an overreaction, and instead propose several layers of regulatory interventions, including more forms of ?channeling? that can largely be accomplished by building off the existing architecture of state health insurance regulation. I also briefly discuss regulating through the expansion of insurer vicarious liability or altering civil procedural doctrines.

Highly recommended.

Full post as published by Legal Theory Blog on February 02, 2010 (boomark / email).