There has been a lot of attention given to the new field of medical tourism and the significant benefits and risks it presents to hotels and resorts.
The hospitality industry cannot escape the fact that there is an ever increasing need to provide medical care to its best market, ageing baby boomers. If planned correctly this need not be a burden but a great opportunity. Part of that planning process will be to develop the appropriate legal strategies that will protect hoteliers from the array of potential liabilities that come with providing medical care. In addition to being a member of a law firm with a global reputation in both hospitality and health care law I am one of those ageing baby boomers who loves to travel.
My own parents looked forward to a retirement in which they could see more of the world and get away from the miserable and cold New England winters. The time share and warm weather resort brochures were always present in the house. A series of medical problems for my father put a halt to these plans. None of them were that serious or life threatening but enough that he needed a home health aide and physical therapy. While to medical professionals, his problems were minor, just easily treated rehabilitative care, to my father and his primary caregiver, my mother, these were life changing and serious enough that travel plans were cancelled. For the hotels and resorts they planned on visiting it was one more empty room and as you look at the hundreds of thousands of families like them across the US, Europe and the Middle East that loss of revenue multiplies into millions of dollars.
Medical Tourism Versus Medical Care
There has been a lot of attention given to the new field of medical tourism and the significant benefits and risks it presents to hotels and resorts. There is a significant difference in legal risk depending on how one defines “medical tourism”, and how it varies from “medical care” while being a tourist. Wikipedia defines medical tourism as “… a term initially coined by travel agencies and the mass media to describe the rapidly-growing practice of travelling across international borders to obtain health care.” It goes on to state, “Services typically sought by travellers include elective procedures as well as complex specialised surgeries such as joint replacement (knee/hip), cardiac surgery, dental surgery, and cosmetic surgeries.” This describes some very complex, invasive and, from a liability lawyers point of few, some very risky activities. We will look at how to quantify, predict and minimise those risks later in this article.
There is a much larger universe of clients and potential clients that need some medical care but are not travelling because of medical reasons but despite medical needs. The ageing baby boomer population creates an ever-growing market of potential clients. Many will stay at home because they think travel will deny them the simple medical care to treat diabetes, colostomies, strokes and a long list of other ailments, readily available by relatively lower paid semi-skilled health care aides and therapists. However, for more involved procedures, it is far more likely that they will want to travel not for the surgery touted by the medical tourism industry but to recuperate and get simple rehabilitative care from surgery done at their local hospital. Targeting this market is especially attractive in place like Oman which has undertaken a major effort to train health care workers and to become a center of destination resorts
Medical tourism has become highly reliant on “facilitators”. These middlemen perform a variety of functions: arranging for medical and travel related services, advising in the selection of the destination provider, arranging for the forwarding of medical records and information, facilitating the payment of fees, setting up aftercare facilities and functions, liaising with insurance companies and other relevant participants. Hoteliers may wish to utilise some type of facilitator to assist with some of the medical tourism arrangements listed above, but for most medical maintenance care, even for rehabilitative services, a paid liaison is not necessary.
From a liability aspect working without a facilitator arguably makes things much more straight forward as there is a great deal of legal uncertainty regarding which parties are exposed to risk. However having a written contract with a facilitator that is experienced, well qualified, fully insured and financially solid will significantly reduce but not eliminate the hotel’s risk. Because this is a new industry and multiple jurisdictions are involved with any transaction as well as the numerous opportunities for miscommunication of medical information, eliminating risk is an impossible dream. The key task in medical tourism is to reduce and manage the risk. Key principles to consider when choosing a facilitator would include:
Medical tourism facilitators are not travel agents, they need to understand health care.
They will be able to clearly in all needed languages communicate to the client; they must be transmitting medical information but have to understand that they are making no medical decisions.
Do they have the client and client’s family play an active role in communicating with care givers at home and in the visited country?
Do they make it clear who they represent as an agent and what risks they assume?
What are the language differences, written and spoken, among all the parties and what is the plan and back up plan to be sure these terms, often medical and scientific and fraught with emotion, are truly understood by the parties.
What is their system for maintaining, updating and backing up records and communications?
Are they using a legal counsel in the home and visiting country and are they giving the client an opportunity to do the same?
Do they recognise the “Murphy’s Law” (If anything can go wrong it will and at the worse time”) factors? Is there cancellation insurance? Avenues for a second opinion? Emergency trauma and evacuation plans? Back up lists of caregiver? Health care workers get sick too.
I am sure there are many additional points of caution that can be added to this list in merely having a role in the medical tourism venture. An area of concern in some destination countries are the medical procedures that are banned in many jurisdictions and therefore force patients to travel for stem cell treatment, experimental drug use, invitro-fertilisation etc. These areas may have criminal risks and merely being a participant, if another is offering these treatments or procedures, could open a Pandora’s box of risk. The MENA region has seen very little of this activity but caution is advised before proceeding.
One of the purposes of this article is to have hospitality professionals consider the benefits of offering some basic medical care and rehabilitation without undertaking the risks and activities accompanying what we’ve defined as “medical tourism”.
The legal principles needed to assist consumers with their health needs are far fewer than in medical tourism. Here are some points to keep in mind:
Work with governmental health regulatory agencies to develop lists of licensed health care entities or individuals and keep this list up to date. Have the governmental tourism agency liaise with their health colleagues if possible.
Retain an international law firm that will understand the laws in the customer’s country and host country and that can draft agreements with local health providers and disclaimers of liability.
Make it clear to all parties that these health care providers are not the hotel’s agents, employees or have any relationship in which you guarantee their work. Provide license number of the provider and the contact information of the licensing agency. Have the customer agree that they understand this disclaimer.
If the hotel has a health care concierge be sure that all print materials have a disclaimer and there is a sign posting at his desk. Hotels are not responsible for the non affiliated restaurants and recreation services they arrange and be sure the customer know this and where he can contact with inquiries or complaints.
If health care providers have an office on hotel property, be sure it is distinct from hotel offices & facilities and there are similar disclaimers. Rental car companies may be using or leasing space from the hotel but it is clear the hotel is not a party to the rental relationship.
If caregivers are providing nursing, personal or physical therapy at the hotel facility, they require a picture identification badge distinct from hotel IDs.
The hotel should not be the keeper of records however it should have an emergency care plan and note specific medical issues such diabetics. Many jurisdictions have significant and complex patient privacy laws and hotels should avoid receiving information and have steps in place to safeguard any information they do receive. Notice should be given that this information is being kept as a courtesy and not a requirement. It would be a good idea to have a place in the room where medical records could be kept and easily found by caregivers or EMTs, but hotel staff be instructed that it is not for their eyes.
Recommend to customers that all medications should be kept in the room safe and the individual using them know how to access the safe.
Determine with food services what special diets you can accommodate low sugar, salt etc., but give the appropriate disclaimers for that as well as for food allergies.
The courts in Europe, the US and the MENA region have seen few of these cases, but most judges surveyed indicated that full disclosure to the consumer is paramount. The more information provided in plain language, with frequent, specific acknowledgements, the more likely the judge will shift the risk to the consumer and away from the hotel. Be aware that one jurist noted a particular dislike of the lengthy, complex small print web site disclaimer with the check off box at the end.
The GCC countries are well suited to attract visitors with medical care needs. The region has been largely unaffected by the political problems of North Africa and the Levant. The quality of health care has been vastly improved by the investments made by the oil rich governments and the thoughtful joint ventures being done with premier hospitals in the United States, England and Central Europe.
Countries like Oman have developed turnkey operations for ambulance services /emergency care with George Washington Hospital. Nursing, physical therapy and rehabilitative care are key specialties at area universities and private companies like Rochester Wellness in the UAE and Oman offer world class aftercare capabilities. Families from the MENA region are well known to travel together as a group, and destinations that are welcoming to all members of the family especially the highly respected elders will be rewarded with frequent and long stays.
The well financed Gulf region races to meet global medical standards which will give patients confidence that they will be safe and well cared for even if their condition worsens or they have an emergency. Weather plays a role in making the area attractive. Who wants to be cooped up inside during a cold dreary winter in England or New England when they can settle in at a sunny destination resort with golf courses, palm trees, great food and quality services? Recuperation in a Gulf hotel or resort may be just what the doctor orders and the industry can benefit by taking the right legal prescriptions.