It is well documented that medical tourism is increasing in popularity. With often cheaper prices and the idea of recovering on holiday surrounded by sun, sea and sand, it is no surprise that this can appear as a more attractive option when compared to UK alternatives.
However, cases involving poor outcomes from cosmetic treatment abroad are being regularly reported in the media. Recently, it was reported that Michelle Williams, a 46 year old British teacher, suffered a cardiac arrest and multiple seizures causing brain damage during a rhinoplasty (nose reshaping) in Turkey. She has been in intensive care in Turkey for over 12 weeks. The hospital initially refused to release Ms Williams from the hospital until a £20,000 bill was paid. This case clearly shows the very real risk of medical tourism.
The British Association of Aesthetic and Plastic surgeons (BAAPS) consistently advises against traveling abroad for any kind of surgery, and not just cosmetic procedures. From a medical perspective the possibility of complications increases considerably with travel and may limit the availability of proper aftercare. In addition, it may be that the standard of training and skill of surgeons, the standard of medical equipment and implants, rules on consent, infection control and aftercare are not comparable to the UK. The level of regulation within the cosmetic surgery industry aboard also cannot be guaranteed.
Natasha Read, principal associate and clinical negligence specialist at Shoosmiths advises that:
“it is absolutely essential for those seeking treatment abroad to very seriously consider the legal implications if things go wrong. These implications are often complex and wide ranging. For example, surgeons abroad may not have insurance or have inadequate cover which means that they may be unable to pay legal costs or compensation. Also, there may be arguments regarding the applicable law in that particular country. Patients need to carefully balance the cost saving against the medical and legal risks of seeking such treatment abroad.”
From a legal perspective, if a claim for medical negligence is pursued, a defendant must be identified. In the UK, the vast majority of private surgeons are a member of defence unions who indemnify them. This means that, in a successful case, the defence union will usually be responsible for payment of legal costs and any compensation. The indemnity/insurance position may well be different in a foreign country. This means that surgeons may well be sued privately and, if so, will have to foot the bill for any compensation or legal costs which they may not be able to afford. Alternatively, if they do have insurance, this may be limited to a particular sum so patients are under compensated for their injuries.
It may also be different to track down the particular surgeon, their company or their insurers when they are operating abroad.
There may also be jurisdictional issues where it is not clear which country’s laws apply. The legal framework in a foreign country may be less favourable for those claiming compensation than UK laws. Also, the rules on consent may be different to those in the UK, meaning that surgeons or other medical practitioners are not required to give patients the same depth of information compared to those in the UK. Patients may not meet the surgeon until the day of surgery, by which time they have paid for and committed to the treatment and it is too late to change their mind.
As cosmetic surgery abroad is usually paid for privately there may also be arguments regarding who is liable to pay for any additional treatment if things go wrong. Treatment may be withheld or delayed until it is paid for. Standard holiday insurance is unlikely to pay for medical care aboard arising out of cosmetic surgery. Also, when a patient is suffering from complications or problems during surgery, they may be vulnerable and unable to obtain proper legal advice if still abroad or unwell.
If claimants seek legal advice in the UK, claims arising out of treatment abroad may be more difficult to pursue if treatment is sought abroad given language barriers, obtaining medical records, the application of different national legislation and identifying medical experts with experience of carrying out the procedure in that particular country. Such cases can also be more costly compared to those arising out of treatment provided in the UK.