by Aaron Kase, Medical Maplractice
22 May 2012
The investigation was one James Goldberg never wanted to undertake.
Six years ago, Goldberg’s son Joshua, then 23, was living in Thailand, studying to become a Buddhist monk. When Joshua mysteriously lost feeling in his left leg, he checked into Bumrungrad Hospital in Bangkok, a highly regarded medical tourism destination for Americans and others seeking health procedures abroad.
However, Joshua’s story turned tragic when he died under suspicious circumstances after 11 days in the hospital, possibly murdered, Goldberg believes, for black market organ harvesting. The doctors never even bothered to diagnose the viper bite that a subsequent autopsy revealed had caused Joshua’s dropfoot. “He’s my only child,” Goldberg says. “He’s gone. I have to live with that every day. It’s a living nightmare. You never wake up from it.”
His son’s death put the elder Goldberg, a former medical technology executive, on a mission for accountability and redress, but he soon found that medical malpractice attorneys in the United States wouldn’t touch his case. Because Joshua died in a Thai hospital, they believed, there was no way for the American legal system to go after the hospitals or doctors. Any litigation would have to be done through the Thai system, which would be expensive, convoluted and promise little chance of success.
But Goldberg refused to give up. Over three years of investigation and research, he compiled a book, The American Medical Money Machine: The Destruction of Health Care in America and the Rise of Medical Tourism, detailing his search for justice and laying out how American trial lawyers might fight back against foreign hospitals and doctors that harm their patients. And while a deeply personal issue for Goldberg, his quest has vast implications as more and more citizens travel abroad for medical procedures, escaping the prohibitive costs that have stricken the American healthcare system. A 2008 study suggests that by 2018, some 16 million Americans annually will seek healthcare in a foreign country.
No Legal Recourse
What patients find at their destinations could differ from their expectations, where despite claims and certificates to the contrary, hospitals may not live up to American standards of care. And when things go wrong, the medical facilities are currently untouchable by those seeking compensation and restitution. “There is no international understanding that if an American is damaged overseas, that they have any legal recourse except within the country where they were damaged,” Goldberg says. Hoping to change that, the author lays out several ways that the medical tourism trade might be subject to accountability through American courts:
The Joint Commission seals:
The Joint Commission
The body that hands out the certifications that most states use to determine what facilities are eligible for Medicare payments also issues certificates for international hospitals that pass certain sets of criteria. Bumrungrad markets itself as the first foreign hospital to earn such accreditation, and it and other hospitals use the seal as a way to market to foreigners seeking medical care that they meet American standards.
“Obviously that stamp of approval is worth a lot of money to those hospitals which are trying to attract American patients,” Goldberg says. “[Patients] infer incorrectly that this accreditation has the authority and blessing of the U.S. government and is a quasi-legitimate endorsement of the legitimacy of this hospital.”
Unfortunately, as Goldberg found out the hard way, a fancy-looking certificate is no guarantee of results. “I sent my son to this hospital because it bore a seal of approval,” he says. “The deeper I dug, the more I found out this logo was completely worthless.”
Because of what he sees as a questionable process for awarding the certifications, which have the effect of creating an endorsement of the foreign facilities, and since the seal itself closely resembles the official seal used to certify American hospitals without guaranteeing the same standards, Goldberg contends the Joint Commission could be a point of liability for people seeking redress for injuries in a certified hospital abroad:
Insurance Companies: A number of major insurance companies are offering policies that encourage patients to travel abroad to take advantage of the cheaper cost of care. “In effect what the insurance industry has done is add these foreign hospitals to their networks,” Goldberg says. “This is no longer the accidental tourist who gets a broken leg in Thailand who goes to the hospital to have it set. This is incorporated into the insurance policies.” The insurance companies paying for consumers to go to what are in effect unregulated hospitals could be another target for litigation, he contends.
Travel Agencies: As easy internet booking has eliminated the need to call an agent to buy a plane ticket, some travel agencies have pivoted and are now focusing their services on coordinating care for would-be medical tourists. A quick Google search turns up dozens of firms competing to offer packages for people seeking procedures. “Some of these agencies are owned, supported or given incentives by foreign hospitals overseas,” Goldberg alleges. If that’s the case, they could be liable.
Domestic Affiliates: While doing his research, Goldberg came across a software company in Baltimore (which subsequently shut down and disappeared) that appeared to be a subsidiary of Bumrungrad Hospital. Business presences of foreign hospitals located in the United States could likely be subjected to the American legal system to collect damages, he says.
False Advertising: Foreign hospitals that advertise to consumers in the United States could potentially be held accountable to the Federal Trade Commission’s truth in advertising rules. “An argument can be made that they are liable to our laws,” says Goldberg. “It just has to be done by a courageous law firm that has to be willing to set some new precedent.”
Correct the Terrible Wrongs
To be sure, the actions Goldberg suggests would require new precedents and potentially new laws. In order to pursue those goals, he has started a consulting service called “Medical Tourism Legal Advisory Services” to raise awareness of the issues and bring lawyers, patients and legislators on board. “I want the legal community to understand the fatal dangers of Medical Tourism and the options at their disposal to correct some of the terrible wrongs that are done,” he says.
Attention to liabilities can only grow in the future, as the medical tourism industry is poised to keep expanding in response to the continued rise in domestic healthcare costs and the legions of baby boomers who consume more health services as they age. Especially for common procedures like joint replacements, foreign facilities look like a great deal–but for now, let the buyer beware. “As the American medical system deteriorates, more and more people will be lured to foreign destinations,” Goldberg says. “If something goes wrong, they are in deep shit.”