Passport to Plastics: Cosmetic Surgery Tourism, Medical Malpractice, and the Automatic Establishment of Personal Jurisdiction by Way of the Joint Commission International

Introduction

For centuries, tourists have visited lands near and far in search of experiences unavailable in their home countries.¹ From golfing the best courses in the world, to yoga retreats in remote locations, many tourist activities provide experiential opportunities along with health and wellness benefits. Currently, an increasing number of individuals are opting to cross international borders to receive medical treatments, often at reduced costs.² While many scholars use the term health tourism to encompass all health and wellness travel purposes,³ this note uses the term medical tourism to distinguish tourism for the specific purpose of medical treatments or procedures. Medical tourism is considered one of the fastest-growing tourism sectors and is creating significant growth in economies across the globe.⁴

Like other developing areas of study, initial studies have only scratched the surface of medical tourism. Rather than analyzing these trends from a different perspective, this note draws on patterns from various nations to propose new methods of protecting patient rights, namely the right to sue in the event of medical malpractice abroad. Specifically, this note will propose the establishment of personal jurisdiction over accredited international healthcare facilities by way of an accrediting US organization. Part I will discuss the origins of medical tourism, explain how and why medical tourism became a booming industry, explore the intersection of medical tourism and medical malpractice, and discuss general principles of jurisdiction. Part II will analyze and compare policies from around the world—including the United States, Brazil, South Korea, and Thailand—concerning medical tourism, cosmetic surgery, and medical malpractice litigation. And finally, Part III will analyze the benefits of and advocate for Joint Commission International (JCI) accreditation, automatically establishing personal jurisdiction over foreign health care providers and facilities for litigants to bring suit in the United States; then provide a secondary proposal of the JCI serving as an appeals board for medical malpractice claims occurring at JCI-accredited healthcare providers.

An Overview of Medical Tourism

This section aims to provide a 10,000-foot view of the medical tourism industry's complexities by discussing the origin and history of medical tourism, general principles of medical malpractice claims as they relate to cosmetic surgery and medical tourism, and jurisdictional problems relating to medical malpractice litigation. This note details these issues before delving into current policies and trends in medical tourism, cosmetic surgery, and medical malpractice litigation worldwide.

History of Medical Tourism

Medical tourism is not a new fad. Around 70 AD, the Romans built a reservoir, a series of baths, and a temple around Aquae Sulis in present-day Bath, England.⁵ These structures indicate that the baths were meant to serve healing purposes rather than mere relaxation.⁶ The baths still attract tourists from all over the world, even after nearly two thousand years. Moreover, in the eighteenth and nineteenth centuries, Europeans and Americans alike traveled to remote destinations in search of treatments for common deadly diseases such as tuberculosis.⁷ More recently, Americans have crossed borders to obtain certain medications at reduced costs.⁸ Alternatively, individuals living abroad have flocked to the United States to seek treatment for several reasons, including state-of-the-art facilities, a dependable accreditation system, and medical professionals that have been trained within the United States.⁹

The phenomenon of traveling abroad for surgery, however, is fairly new and becoming increasingly common. As the market for medical tourism has expanded, patients across the globe have opted to hop on planes, trains, and ships to seek care in other nations for a variety of reasons. Numerous medical tourism firms—essentially travel agencies that coordinate medical procedures abroad for travelers—have made the process of seeking and obtaining care easier.¹⁰ In 2017, more than 1.4 million Americans traveled to a different country for medical treatment, while the overall number of medical tourists worldwide was estimated to be somewhere between 14 and 16 million.¹¹ As healthcare costs continue to rise in the United States, American...