A recent UK legal case has highlighted the risks faced by medical tourism businesses, hospitals and clinics. The case established the right of a UK patient to sue an overseas clinic in the UK courts. Caroline Ratner of IMTJ spoke to Laurence Vick of Michelmores, a UK law firm with a reputation for successfully representing clients in clinical negligence cases. The Exeter based firm is taking on an increasing numbers of medical tourism cases where British patients have travelled abroad for surgery and are taking action in the UK courts against overseas clinics and doctors.
Laurence talks about the misconceptions surrounding the law and medical tourism, and how the law affects clinics, doctors and healthcare providers. He clarifies who is responsible in medical negligence claims - the clinic or the doctor - and what grounds patients have to sue a clinic in the courts within their home country, once they have returned from having treatment abroad.
He also outlines the background to a particular case involving a British woman who underwent eyelid surgery carried out by an Italian doctor in Belgium. The patient sued the clinic in the UK courts even though the operation took place in Belgium. Laurence explains how it may be possible for a client to sue a foreign hospital or doctor in his or her home country. Although he usually acts for patients, he also spoke about what clinics can do to protect themselves, especially with regard to American patients who may pursue damages in the US courts, notorious for high payouts and expensive legal processes.
The care provided by the vast majority of hospitals and clinics involved in medical tourism is first rate, but surgery sometimes goes wrong, and as a lawyer whose job it is to seek compensation Laurence is left picking up the pieces.
Can you explain what happened with the Belgian case?
The patient travelled to Belgium for eye surgery. The surgery went disastrously wrong and the patient suffered permanent damage to her facial nerves. The Italian surgeon was initially sympathetic and carried out a further unsuccessful operation at no cost to the client in the Belgian clinic. For a number of reasons, legal proceedings were issued in England against the Belgian healthcare provider; the Italian surgeon, (apparently registered with the UK General Medical Council) then disappeared. Facing a three year limitation deadline in the UK for bringing the claim, we issued proceedings in this country against both the cosmetic surgery clinic and the surgeon.
How were you able to bring proceedings against a Belgian clinic and an Italian doctor in the UK?
The Belgian clinic did not instruct lawyers or insurers, and have argued in telephone calls to me that we should have sued in the country where the treatment took place, as opposed to where the contractual arrangements were made. We took the advice of a specialist counsel who advised that this was not the case and that we could sue in the UK because various factors were in place that allowed us to bring the case before the British courts. We did this despite the clinic’s insistence that we could not. The clinic ignored the case and did not respond. As a result, we got a default judgement against the clinic on the basis that they provided the overall package of treatment to the patient.
Does that mean that any patient with a claim against a foreign clinic or doctor can sue in their home country?
Yes this may be possible, as far as the UK is concerned and this probably applies to other countries too. Of course various factors will need to be in place but yes, we can sue in the UK against an overseas defendant. In the first instance, we have to apply to an English court for permission and we have to show the court that there is an English connection and that there are factors present connecting the case to the UK.
The factors that need to be present to enable to us to bring the case to court in the UK for a British patient may include the following:
Contractual arrangements take place in England.
Proof that the clinics are targeting UK customers e.g. having a co.uk web address.
Advertising in the UK in the media (on and offline media).
If the surgeon is GMC registered .
If the patient has had a pre-op consultation or if part of the treatment took place in the UK.
If the clinic has a UK consulting address.
Is that what happened in the Belgian case?
Yes, the Belgian clinic has consulting rooms in London and Manchester. All the arrangements and first consultations took place in London. So even though the treatment took place in Belgium, as there was no effective jurisdiction clause in their contract with our client this meant that we, the patient’s lawyers had sound jurisdiction here and we were able to present a persuasive argument to the UK court to accept jurisdiction.
How did the Belgian clinic react to you bringing the case against them in the UK?
They tried to fob us off but we have won the case now and got judgement against the clinic yet the clinic still believes they are off the hook and have no liability for our client’s negligent surgery. Clinics seem to be convinced that they’re bomb proof because it is the doctor’s liability and believe a patient can only sue the surgeon. This is wrong as our case has proved.
Why would you sue a clinic and not the surgeon?
Where we think we are going to have trouble suing a surgeon we will sue the clinic for providing the package, so clinics can’t hide behind the surgeon.
In this particular case, the clinic has admitted that other patients have undergone botched operations with the same surgeon, who has now gone to ground. No one seems to know where he is.
Do you think increasing numbers of medical tourists will sue in the UK courts or their home countries?
Yes I do, but lawyers need educating because they are tending to advise their clients that if they’ve been operated on in a particular country then they have to sue in that country. That is not always true. These cases against foreign clinics often call for an unconventional approach to the legal process and how to run the case. Just because the operation took place abroad patients shouldn’t start off assuming that they will have to find a lawyer to pursue litigation in that country.
Apparently some clinics are now including jurisdiction clauses in their contracts with overseas patients to protect themselves from being sued in the patient’s home country, will this stop patients being able to sue in their home countries?
It will likely become more commonplace for clinics to include a jurisdiction clause in the contract saying that a patient cannot sue in their home country, if something goes wrong. If a clinic has successfully incorporated a jurisdiction clause then that will become a factor against us that would weaken our argument for getting jurisdiction here. However, the clinic is going to have to prove that the jurisdiction clause is binding. A jurisdiction clause may still not be conclusive if other factors, like those I previously mentioned are in place.
Is there usually an agreement between a clinic and surgeons who operate there regarding liability?
If a clinic has been properly advised you would expect them to have fully thought through potential situations and they would then have a jurisdiction clause. I would also expect them to properly check out a surgeon’s status, credentials and experience. If I were running a clinic, I’d want to know that a surgeon would indemnify my clinic if we were to face a claim arising from the surgeon’s blunder. As a lawyer acting for a patient our duty to the client is to follow the fastest route to get compensation, we don’t want to have to track surgeons down so if we can’t find the surgeon, as in this case, then we’ll go after the clinic and will always try and sue the clinic. If a clinic didn’t check out a surgeon’s credentials, they could still be liable for their negligent choice of surgeon.
Would you sue a medical tourism facilitator who had organised overseas treatment for a patient?
It’s conceivable that a facilitator could end up with a liability to the patient, however it would probably be quite a complicated claim to advance. If they are setting themselves up as knowing the market and advising patients about where to go and they have a lot of experience and expertise in this area then it could be hard to show they were negligent, especially if they have long established relationships with foreign hospitals and clinics. I can see that researching and organising medical travel can be a minefield for the patient and the role of a facilitator can be very important.
Medical tourism businesses are keen to attract US patients. What happens if US patients want to sue in the US?
I’m not an expert on US jurisdiction but my experience of acting for British clients suing in the US is that it can be a hostile environment. US courts discourage “forum shopping” which is where clever lawyers rely on any argument they can to sue in America and the American courts try and discourage that. Some states impose a damages cap so in larger cases it may not be in an American patients’ interest to sue in the US. By advertising to and targeting American patients, overseas clinics are vulnerable to cases being brought against them in the US, potentially exposing themselves to substantial damages awards from a US jury. Compensation for botched surgery with resulting severe mental trauma and disfigurement can produce multi-million dollar payouts from US courts.
What can clinics learn from the Belgian case?
I will be talking more about this at the annual conference of the Association for Medical Tourism Development in Croatia this April in Opatija. In this particular case, the Belgian clinic seemed convinced that the case was nothing to do with them. They ignored all the letters sent to their London address. This was a mistake. They didn’t respond and therefore we have a default judgement against them. In the future, I think foreign clinics need to be aware that they could be sued in the patient’s home country. Additionally, clinics may have to disclose their contractual arrangements with the doctor or surgeon, if there is a big case. It isn’t enough for the clinic to walk away from responsibility simply because the surgeon is working as a freelance. I also don’t think it’s a compulsory requirement for clinics to have malpractice insurance and this is something that all clinics should be aware of. I appreciate the insurance industry is developing products to support patients and clinics in this burgeoning market.
Profile: Laurence Vick
Laurence Vick, a partner at Michelmores Solicitors, is Head of the Clinical Negligence team. He specialises in paediatric/adult cardiac surgery, birth injuries - cerebral and Erb's palsy, gynaecology, spinal and plastic/cosmetic surgery, neurological injury. Laurence was lead solicitor to Bristol Heart Children Action Group at Bristol Royal Infirmary Public Inquiry, also handling related fatal and brain damage claims with significant PTSD, consent, exemplary/aggravated damages, "corporate failure", increased risk issues. He is also Legal Adviser to Constructive Dialogue for Clinical Accountability (CDCA).
Comments provided below do not represent the views of IMTJ. Comments will be published "as is" and will not be edited by IMTJ staff. IMTJ is hosting these comments, and is not undertaking an editorial role in the content of these comments. However, it is editorial policy not to publish comments which have been submitted anonymously.