Protecting patients with passports: Medical tourism and the patient-protective argument

Iowa Law Review

Volumn 95, Issue 5, 2010, Pages 1467-1567

  Cohen, I Glenn ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77952043107     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (541)

1. See, e.g., Joshua Kurlantzick, Sometimes, Sightseeing Is a Look at Your X-Rays, N.Y. TIMES, May 20, 2007, http://www.nytimes.com/2007/05/20/travel/ 20HeadsUp.html;
2. John Lancaster, Surgeries, Side Trips for "Medical Tourists," WASH. POST, Oct. 21, 2004, at Al, available at http://www.washingtonpost.com/wp- dyn/articles/A49743-2004Oct20.html;
3. Canaille Sweeney, More Fun Than Root Canals? It's the Dental Vacation, N.Y. TIMES, Feb. 7, 2008, at Gl, available at http://travel.nytimes.com/2008/02/ 07/fashion/07SKIN.html.
4. See, e.g., Arnold Milstein & Mark Smith, America's New Refugees-Seeking Affordable Surgery Offshore, 355 NEWENG.J. MED. 1637 (2006);
5. Robert M. Wachter, The "Dis-Location" of U.S. Medicine-the Implications of Medical Outsourcing, 354 NEWENG.J. MED. 661 (2006).
6. Kg., The Globalization of Health Care: Can Medical Tourism Reduce Health Care Costs?: Hearing Before the Spec. Comm. on Aging, 109th Cong. (2006) [hereinafter The Globalization of Health Care], available at http://purl.access.gpo.gov/GPO/LPS78404;
7. H.B. 2841, 78th Leg. (W. Va. 2007).
8. It is accurate in that a number of the existing companies that facilitate getting medical care abroad couple the service with a tourist experience, such as a trip to the Taj Mahal or a safari. It is pejorative to the extent it is meant to suggest that what is being sought is trivial, when in many cases what is being sought is potentially life-saving treatment. I use this term, rather than "cross-border health care" or some other variation, because it is the accepted one in the literature, but it is important not to let it subtly shade intuitions in an anti-regulatory direction.
9. Kerrie S. Howze, Note, Medical Tourism: Symptom or Cure? 41 GA. L. REV. 1013, 1015-16, 1016 n.18 (2007);
10. Anne Cearley & Penni Crabtree, Alternative-Medicine Clinics in Baja Have History of Controversy, SAN DlEGO UNION-TRIB., Feb. 1, 2006, at A8, available at 2006 WLNR 1918432. 6.Lancaster, supra note 1.
11. MIUCA Z. BOOKMAN & KARLA R. BOOKMAN, MEDICAL TOURISM IN DEVELOPING COUNTRIES 3 (2007).
12. Milstein & Smith, supra note 2, at 1638. The number has to be qualified in that some percentage of those 55,000 Americans were likely expatriates living in Thailand.
13. BOOKMAN & BOOKMAN, supra note 7, at 3;
14. TOURISM RESEARCH AND MARKETING (TRAM), MEDICAL TOURISM: A GLOBAL ANALYSIS 18 (2006);
15. see Great Indian Hospitality Can Be Biz Too, ECONOMIC TIMES (INDIA), July 29, 2005, available at 2005 WLNR 11859886 (noting that according to one study that India could generate $2.2 billion in medical-tourism revenue by 2010).
16. See Kevin Whitelaw, Dubai Recruits American Medical Leaders: Harvard and the Mayo Clinic An Among the Big-Name Institutions Locating in Healthcare City, U.S.NEWS.COM, June 5, 2008, http://politics.usnews.com/news/world/articles/2008/ 06/05/dubai-recruits-american- medical-leaders.html.
17. Arnold Milstein & Mark Smith, Will the Surgical World Become Flat?, 26 HEALTH AFF., Jan.-Feb. 2007, at 137,139-40.
18. DEVON M. HERRICK, NAT'L CTR. FOR POLICY ANALYSIS, MEDICAL TOURISM: GLOBAL COMPETITION IN HEALTH CARE 11 tbl.l (2007), available at http://www.ncpa.org/ pdfs/st304.pdf (relying on data from Unmesh Kher, Outsourcing Your Heart, TIME.COM, May 21, 2006, at 44, available at http://www.time.com/time/magazine/ article/0,9171,1196429.00.html);
19. see also The Globalization of Health Care, supra note 3, at 18 (statement of Dr. Arnold Milstein) ("The typical combined facility and physician chargers per surgery in these [foreign] hospitals is, based on my international shopping observations, 65 to 85 percent lower than insurer negotiated charges in the U.S.").
20. I use the term "U.S. users" rather than "Americans" deliberately because, especially as to medical tourism to Mexico, some of these medical tourists may be unauthorized immigrants.
21. Joe Cochrane, Medical Meccas, NEWSWEEK, Oct. 30, 2006, at 1, available at http://www. msnbc.msn.com/id/15365149/site/newsweek/?rf=nwnewsletter.
22. See H.B. 4359, 77th Leg., 2d Sess. (W. Va. 2006), available at http://www.legis.state.wv.us/Bill-Text-HTML/2006-SESSIONS/RS/Bills/ hb4359%20intr.htm;
23. see also Mark Roth, Surgery Abroad an Option for Those xoith Minimal Health Coverage, POST-GAZETTE.COM, Sept. 10, 2006, http://www.post-gazette.com/ pg/06253/719928-37.stm.
24. See, e.g., DEAN BAKER & HYEJIN RHO, CTR. FOR ECON. POLICY & RESEARCH, FREE TRADE IN HEALTH CARE: THE GAINS FROM GLOBALIZED MEDICARE AND MEDICAID (2009), available at http://www.cepr.net/documents/publications/free- trade-hc-2009-09.pdf. This particular proposal differs from standard medical-tourism models in that it anticipates offering Medicare (or less plausibly Medicaid) patients a voucher they could use if the individual relocates to buy into foreign health care systems with longer life expectancies. See id. at 3-4. The incentive payment to the individual would be taken out of the cost savings to Medicare or Medicaid. Id. at 9. With 10% of Medicare and Medicaid beneficiaries adopting this option in 2020, the authors forecast an $18 billion savings for these federal programs per year. Id. at 14. Because this proposal requires relocation, it seems somewhat far-fetched, but a more plausible version could use similar incentive payments to induce certain patients to get particular treatments abroad while retaining their primary residence in the United States.
25. TEX INS. CODE ANN. § 1215.004 (Vernon 2009).
26. See The Globalization of Health Care, supra note 3.
27. See, e.g., Bob Herbert, Op-Ed., Worsening the Odds, N.Y. TIMES, Nov. 3, 2007, at A21, available at http://www.nytimes.com/2007/ll/03/opinion/03herbert. html.
28. These numbers are drawn from reporting in Guy Boulton, States Push for Hospital Price Lists, Initiatives Aim to Clarify Billing for Consumers,]. SENTINEL (Milwaukee, Wis.), Oct. 15, 2007.
29. See also Michael Klaus, Outsourcing Vital Operations: What if U.S. Health Care Costs Drive Patients Overseas for Surgeryt, 9 QuiNNIPIAC HEALTH L.J. 219, 224 (2006) ("A heart bypass surgery that costs $60,000 to $80,000 in the United States costs around $10,000 in Asia."). 21.This account is drawn from a plan Blue Ridge Paper actually attempted to put into place.
30. Milstein & Smith, supra note 2, at 1638-39;
31. Jonathan G. Bethely, Exporting Patients: Money Versus Possible Safety Issues, AM. MED. NEWS, Sept. 18, 2006, available at http://www.ama-assn.org/ amednews/2006/09/18/bisa0918.htm;
32. Kher, supra note 12. Union opposition ultimately stalled the company's proposal. See Saritha Rai, Union Disrupts Plan To Send Ailing Workers to India for Cheaper Medical Care, N.Y. TIMES, Oct. 11, 2006, at C6, available at http://www.nytimes.com/2006/10/11/business/worldbusiness/l lhealth.html.
33. How many patients currently using medical tourism are uninsured like Carl versus using insurer-prompted medical tourism like Bob? What are the socioeconomic statuses of these patients and their motivations? While there is some descriptive work on these populations I draw on below, the demographic work lags far behind the legal and ethical problems posed. I therefore try and reason from archetypal types of patients like Carl and Bob and draw analogies to similar dilemmas in die domestic context, and identify key areas where more empirical work is necessary. 23. Medical tourism is itself part of a larger move towards healthcare globalization, encompassing among other things the re-importation of drugs from Canada and elsewhere, the importation of healthcare providers through medical migration (the "brain drain"), research tourism (where U.S.-based pharmaceutical companies perform clinical trials abroad), and telemedicine (e.g., teleradiology) where both the patient and provider stay put in their respective countries, but the service is provided remotely. 24.See BOOKMAN & BOOKMAN, supra note 7, at 46 (noting that 8% of travelers will use foreign medical services incidental to other travel, most often for diarrhea or for malaria (in Africa)).
34. These hypotheticals are loosely based on real-world events. See Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001) (allowing a prebirth order designating genetic parents as legal parents of a child carried by a gestational surrogate);
35. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (holding surrogacy agreement unenforceable when surrogate was both the gestational and genetic mother); Amelia Gentleman, India Nurtures Business of Surrogate Motherhood, N.Y. TIMES, Mar. 10, 2008, at A9, available at http://www.nytimes.com/2008/03/10/world/asia/ lOsurrogate.html.
36. Cf. Complaint at 7-8, Abigail Alliance for Better Access to Developmental Drugs v. McClellan, No. 03-1601 (RMU), 2004 WL 3777340 (D.D.C. Aug. 30, 2004) (describing a patient denied access in a similar situation domestically), qjfd sub nom. Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (en bane).
37. See R v. DPP [2009] UKHL 45 (U.K.) (dealing with a similar fact pattern in the U.K. context).
38. For more on the ethical and legal issues raised by these two other categories,
39. see I. Glenn Cohen, Medical Tourism: The View from Ten Thousand, HASTINGS CENTER REP., Mar.-Apr. 2010, at 11.
40. Taxonomies are useful at organizing complex areas, but always risk hiding cases that are at the interstices, and thus this taxonomy should not be thought of as exhaustive or perfecdy capturing nuances of all cases.
41. For example, medical tourism for potentially dangerous innovative therapies may raise both patient-protective concerns and concerns about inequitable access. 30.In a few places I do consider the dynamic effects of how medical tourism might affect the market for health care domestically, for example the possibility that insurer-prompted medical tourism will lead to cream-skimming from the domestic health care insurance market. My own sense is that medical tourism is extremely unlikely in the foreseeable future to grow so large as to portend large dynamic effects on healthcare practice in the United States, in part because of consumer preferences for domestic care, the fact that many employers use capacious health-insurance plans as wage substitutes, and because a certain domestic healthcare infrastructure will always be needed for emergency care. Still, in a few places I suggest some tentative normative assessments of those dynamic effects if they were to manifest. A different, and in my mind, more plausible dynamic effect of medical tourism has to do with price transparency. Exposure to information on the pricing of services abroad may push for more price transparency in the United States. As Mark Hall and Carl Schneider have put it, currently in the United States "[w]hen patients approach a doctor or hospital, they almost never know and can rarely discover what things will cost." Mark A. Hall & Carl E. Schneider, Patients As Consumers: Courts, Contracts, and the New Medical Marketplace, 106 MICH. L. REV. 643, 647 (2008). It is unclear how much medical tourism would be necessary to induce more price transparency, but to the extent it manifests this largely seems like a positive dynamic effect of medical tourism on our domestic industry.
42. See The Globalization of Health Care, supra note 3, at 46 (statement of Dr. Bruce Cunningham, former President of the American Society of Plastic Surgeons);
43. Nathan Cortez, Patients Without Borders: The Emerging Global Market for Patients and the Evolution of Modem Health Care, 83 IND. LJ. 71, 74, 91 (2008);
44. Leigh Turner, Medical Tourism: Family Medicine and International Health-Belaud Travel, 53 CAN. FAM. PHYSICIAN 1639, 1640 (2007);
45. Howze, supra note 5, at 1031. 32.
46. BOOKMAN & BOOKMAN, supra note 7, at 13. These are not the exclusive sites, of course. The United States has itself been a hub for medical tourism.
47. Id.
48. Id. at 14.
49. Nicolas P. Terry, Under-Regulated Health Care Phenomena in a Flat World: Medical Tourism and Outsourcing, 29 W. NEW ENG. L. REV. 421, 426 (2007).
50. BOOKMAN & BOOKMAN, supra note 7, at 43-44;
51. see Christopher J. Brady, Note, Offshore Gambling: Medical Outsourcing Versus ERISA's Fiduciary Duty Requirement, 64 WASH. & LEE L. REV. 1073, 1091-92 (2007) (noting that medical outsourcing "tends to focus on finding low-lost alternatives to noncosmetic procedures");
52. cf. Jennifer Alsever, Basking on the Beach, or Maybe on the Operating Table, N.Y. TIMES, Oct. 15, 2006, § 3, at 5 (discussing the various types of procedures).
53. BOOKMAN & BOOKMAN, supra note 7, at 44.
54. Id.
55. See, e.g., id. at 49-53.
56. For a dissenting view suggesting that cost shopping as a motivation has been exaggerated, see Theo Francis, Medical Tourism Is Still Small: Getting Care Abroad May Be Less Usual than Once Thought, WALL ST. J., May 6, 2008, at D2.
57. HERR1CK, supra note 12, at 11 tbl. 1. 41.
58. See, e.g., Milstein & Smith, supra note 11, at 139-40.
59. Cathy Schoen et al., Insured But Not Protected: How Many Adults Are Underinsuredt, W5 HEALTH AFF., NOV. 2005, at 289, 289, 295-96, http://content.healthaffairs.org/cgi/content/abstract/hlthaff.w5.289.
60. The study defined the uninsured as those whose "[m]edical expenses amounted to 10 percent of income or more; (2) among low-income adults (below 200 percent of the federal poverty level), medical expenses amounted to at least 5 percent of income; and (3) health plan deductibles equaled or exceeded 5 percent of income." Id. at 291-92.
61. Id. at 296.
62. Id. Medical tourism is also popular for those who are underinsured in a different more mundane sense: a robust medical-tourism industry exists for dental care and cosmetic surgery because few have health insurance that covers those services. See BOOKMAN & BOOKMAN, supra note 7, at 43-44;
63. Gillian Lester, A Defense of Paid Family Leave, 28 HARVARD J.L. & GENDER 1, 14 (2005);
64. see also Thomas v. Gen. Am. life Ins. Co., 568 N.E.2d 937, 940 (111. 1991) (holding that an insurance company's decision to refuse coverage of cosmetic surgery was not arbitrary and capricious).
65. Milstein & Smith, supra note 11, at 138. 47.
66. Id. at 138-40.
67. Id. at 140 exhibit 3.
68. Id. To be sure, one might have some methodological quibbles with the study (its relatively small sub-sample, whether the picture of medical tourism painted is too rosy), but it is a good (if imperfect) indicator of just how likely many Americans are to use medical tourism to achieve cost savings.
69. See, e.g.. BOOKMAN & BOOKMAN, supra note 7, at 52.
70. See, e.g., Cortez, supra note 31, at 81.
71. Id. (citing Gerard F. Anderson et al., It's the Prices Stupid: Why the United States Is So Different from Other Countries, 22 HEALTH AFF., May-June 2003, at 89, 98;
72. Uwe E. Reinhardt et al., Cross-National Comparisons of Health Systems Using OECD Data, 1999, 21 HEALTH AFF. May-June 2002, at 169,169).
73. Id.
74. see HERRICK, supra note 12, at 9-10;
75. Terry, supra note 35, at 465. 54.It is also possible that patient-selection effects play a role if healthier patients travel abroad sticking U.S. facilities with the sickest patients. While theoretically possible, the current volume of medical tourism makes this explanation less plausible.
76. See Patricia M. Danzon, Liability for Medical Malpractice, in IB HANDBOOK OF HEALTH ECONOMICS 1339, 1343 (Anthony J. Culyer & Joseph P. Newhouse eds., 2000);
77. see also Cortez, supra note 31, at 81 (citing Timothy Stolufusjost, Our Broken Health Care System and How To Fix It: An Essay on Health Law and Policy, 41 WAKE FOREST L. REV. 537, 548 (2006)). Of course, how much of U.S. healthcare spending is an indirect cost of the U.S. med-mal system, particularly so- called "defensive medicine"-a "deviation from sound medical practice that is induced primarily by a threat of liability"-has been quite difficult to ascertain and most estimates are deeply contested on either definitional or measurement grounds.
78. David M. Studdert et al., Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment, 293 JAMA 2609,2609 (2005).
79. BOOKMAN & BOOKMAN, supra note 7, at 57-59.
80. Id. at 57.
81. Id.
82. Id. at 41, 91;
83. Alsever, supra note 36, at 3-5 (describing an American patient who underwent spinal surgery in New Delhi and "paid $9,000 for the three-week trip, which included a five-day hospital stay, airfare, hotel and sightseeing at spots like the Taj Mahal").
84. Id. at 59.
85. BOOKMAN & BOOKMAN, supra note 7, at 62-63.
86. Howze, supra note 5, at 1024-25;
87. Escorts Heart Institute and Research Center, Ltd., International Patients, http://www.ehirc.com/international-patients/index.asp (last visited July 18, 2010);
88. see BOOKMAN & BOOKMAN, supra note 7, at 61 (discussing advertising by Malaysian and Cuban and Arabmedicare.com);
89. Wockhardt Hospitals, International Patients, http://www. wockhardthospitals.com/intemational-patient-services/(last visited July 18, 2010).
90. BOOKMAN & BOOKMAN, supra note 7, at 63.
91. MedRetreat, Medical Tourism Process, http://www.medretreat.com/index.php? t= medical-tourism/medical-tourism-process (last visited July 18,2010).
92. Id. 66.Id.
93. Id.
94. Id.
95. MedRetreat, supra note 64.
96. For a detailed account of the mechanics of other intermediaries.
97. see, The Globalization of Health Can, supra note 3, at 40-41 (statement of Rajesh Rao) (IndUS health);
98. Klaus, supra note 20, at 227 (Medical Holidays Service Providers).
99. See discussion infra Part II.B.5.
100. Aaditya Mattoo & Randeep Rathindran, How Health Insurance Inhibits Trade in Health Care, 25 HEALTH AFF., Mar.-Apr. 2006, at 358, 359.
101. Bumrungrad International, Meet Our Doctors, http://www.bumrungrad.com/ Overseas-Medical-Care/Medical-Services/Meet-Our-Doctors.aspx (last visited July 18, 2010). Other work in the field has suggests results similar to these unaudited numbers. Millstein and Smith found that Wockhardt had "four cardiac surgeons trained in U.S. or Australian hospitals" and Bumrungrad had three cardiac surgeons trained in the United States, United Kingdom, and Australia-two of which were confirmed as "board certified." Milstein & Smith, supra note 11, at 139;
102. see also The Globalization of Health Care, supra note 3, at 44 (statement of Rajesh Rao, CEO, IndUShealth, Inc.) (testifying that the physicians in the Indian facilities in which his company is affiliated "are U.S.- and U.K.-trained for the most part.");
103. Levi Burkett, Commentary, Medical Tourism: Concerns, Benefits, and the American Legal Perspective, 28 J. LEGAL MED. 223, 230 (2007) ("[M]any of the surgeons in India's large Apollo Hospitals Group trained at the most prestigious surgery centers in the United States."). 73.See Partners Harvard Medical International, Our Client Community, http://www. phmi.partners.org/Experience/Clients.aspx (last visited July 18, 2010).
104. HERRICK, supra note 12, at 16;
105. Milstein & Smith, supra note 11, at 139.
106. MARK A. HALL ET AL.( HEALTH CARE LAW AND ETHICS 1196-97 (7th ed. 2007). "The Joint Commission is governed by the major trade associations, primarily the American Medical Association, the American Hospital Association, the American College of Surgeons and the American College of Physicians...." Id. at 1196. Though theoretically voluntary, this accreditation is frequently a must-have because of hospitals' need for Medicare and Medicaid revenues. Id. at 1197. The International Organization for Standardization also has a less popular certification program that has been used to certify some hospitals in Mexico, India, Thailand, Lebanon, and Pakistan. Milstein & Smith, supra note 2, at 1639.
107. As of January 2009, for JCI to accredit an organization, it must score a "5" on each of JCI's many standards, "an aggregate score of at least '8' for each chapter of standards," and an overall "aggregate score of at least '9' on all standards." Joint Comm'n Int'l Hosp. Accreditation Program, Program Accreditation Decision Rules 1 (2009), http://www.jointcommission intemational.org/common/pdfs/fpdfs/pubs/pdfs/ JCI%20ezine/JCIA%202009%20Hosp%20Accreditation%20Decision%20Rules.pdf.
108. Id. at 2.
109. Id.
110. Joint Commission International, Joint Commission International (JCI) Accredited Organizations, http://www.jointcommissioninternational.org/JCI- Accredited-Organizations/(last visited July 18, 2010);
111. Milstein & Smith, supra note 2, at 1639. 80.Supra note 21 and accompanying text.
112. For further examples of emerging insurer- prompted medical tourism,
113. see supra notes 14-17 and accompanying text.
114. Ray Marcelo, India Hopes To Foster Growing Business in "Medical Tourism," FlN. TIMES (London), July 2, 2003, at 10;
115. Cortez, supra note 31, at 100.
116. Bruce Einhorn, Hannaford's Medical-Tourism Experiment, Bus. WK., Nov. 9, 2008, hup://www.businessweek.com/globalbiz/content/nov2008/gb2008119-505319.htm. As of November 2008, apparently no employee had used the service, likely in part because The Wall Street Journal reporting on Hannaford's program prompted a U.S. insurer to offer Hannaford coverage "for comparably priced operations in the U.S.," thus enabling employees to travel to "other parts of the U.S." rather than Singapore, while the company realized the same cost savings. Id.
117. CAL. HEALTH & SAFETY CODE § 1340-1399.818 (West 2008).
118. Cortez, supra note 31, at 100;
119. Ly Tran, Note, Sick and Tired of the Knox-Keene Act: The Equal Protection Right of Non-Mexican Califomians to Enroll in Mexico-Based HMO Plans, 14 Sw. J. L. & TRADE AM. 357,360-65 (2008). I discuss this infra at text accompanying notes 283-84.
120. See supra note 15. 86. See supra text accompanying notes 82 and 85. 87. In systems that ration healthcare by a combination of need and queuing, such as Canada and the United Kingdom's National Health Service, the ability to skip wait times may also incentive usage of this kind of medical tourism. As confirmed by a recent decision by the European Court of Justice, member states of the European Union now face some obligations to reimburse their citizens for treatments received in other member states when the patient faces "undue delay" in receiving care in their home member state. See Case C-372/04, Watts v. Bedford Primary Care Trust, 2006 E.C.R. 1-04325;
121. Terry, supra note 35, at 437. This form of insurer-prompted medical tourism, where the insurer is the government, poses some distinct issues that I do not focus on here. 88.The Globalization of Health Cave, supra note 3.
122. The tables of contents of leading healthcare law textbooks give a good bird's eye view of this. See, e.g., HALL ET AL., supra note 75, at xi-xxviii;
123. CLARK C. HAVIGHURST ET AL., HEALTH CARE LAW AND POLICY xix-xxxi (2d ed. 1998).
124. While the deterrent effect of med-mal liability also contributes to good quality of care, I think it advisable to bifurcate the analysis in this way for several reasons. First, how much med- mal liability actually contributes to quality of care is hotly contested in the U.S. context. Second, even if one thinks it contributes a lot, med-mal is but one of several contributors to good quality of care, such that even if a foreign med-mal system looks deficient compared to our own system, their regulatory system may have other countervailing elements ensuring good quality of care, or it may not. Third, in the opposite direction, even if quality of care is excellent some amount of medical error is inevitable, and the compensatory function of med-mal thus remains important even if the deterrent function is handled by other regulatory mechanisms. 91.Skeptics of the American medical-malpractice system as a good system for tort compensation are legion and focus on the poor connection between the fact and amount of med-mal recovery and whether medical error actually occurred. See, e.g., Richard A. Epstein, Contractual Principle Versus Legislative fixes: Coming to Closure on the Unending Travails of Medical Malpractice, 54 DEPAUL L. REV. 503, 512 (2005);
125. David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 NEW ENG. J. MED. 2024 (2006);
126. Paul C. Weiler, Reforming Medical Malpractice in a Radically Moderate-and Ethical-Fashion, 54 DEPAUL L. REV. 205, 215 (2005). There is also a robust literature as to whether alternative systems would be better, considering most notably enterprise liability, med-mal mediation and arbitration, health courts, and a no-fault compensation system.
127. See, e.g., Philip G. Peters, Jr., Health Courts?, 88 B.U. L. REV. 227 (2008);
128. Elizabeth Rolph et al., Arbitration Agreements in Health Care: Myths and Realities, LAW & CONTEMP. PROBS., Winter 1997, at 153;
129. William M. Sage, Enterprise Liability and the Emerging Managed Health Care System, LAW & CONTEMP. PROBS., Spring 1997, at 159;
130. David M. Studdert et al., Can the United States Afford a "No-Fault" System of Compensation for Medical Injury?, LAW & CONTEMP. PROBS., Spring 1997, at 1. What to do about the American med-mal system is a much larger debate, and one I will not resolve here. Even if one thought the American med-mal system was hopelessly deficient, one would need to compare it to each foreign system under which the plaintiff's claim might be judged-lest the perfect become the enemy of the good. I do not purport to offer that kind of country-by-country analysis here. Instead, I will simply assume that having one's claim covered by the U.S. med-mal system is, all diings being equal, desirable for the U.S. patient seeking care. The question is whether to allow them to depart from its protection in return for the benefit of lower-cost healthcare abroad, noting that this is a contestable assumption. In so doing, I actually handicap my argument and make my conclusions (which point away from regulating medical tourism, especially for under/uninsured medical tourists) even stronger for diose who take the more skeptical approach to the U.S. med-mal system.
131. See, e.g., HERRICK, supra note 12, at 12;
132. Burkett, supra note 72, at 233.
133. Also relevant-though not strictly from the patient-protective perspective since it is more about externalities-is whether broadening the availability of nonemergency care to uninsured individuals through medical tourism will reduce the number of uninsured individuals who currently use publicly funded hospital emergency services, which are particularly expensive because of the intensity of resources required to staff and to equip hospital emergency rooms, and are passed on to all users.
134. See, e.g., Jonathan Gruber, Covering the Uninsured in the United States, 46 J. ECON. LITERATURE 571, 582 (2008) (estimating a $30 billion cost for all U.S. hospitals for "uncompensated care" in 2005). This was a central tenet of Massachusetts's move to an individualized mandate for health insurance-increasing the availability of non-emergency services would reduce the number of patients who currently seek uncompensated care in the ER.
135. See, e.g., Editorial, Mandatory Health Insurance, N.Y. TIMES, Apr. 15, 2006, at Al 2.
136. Milstein & Smith, supra note 2, at 1639;
137. see also Terry, supra note 35, at 464 (complaining that "[a]t this stage, there is simply no data with which to address this 'quality' question").
138. Mattoo & Rathindran, supra note 71, at 359 (emphasis added).
139. Leigh Turner, 'First World Health Care at Third World Prices': Globalization, Bioethics and Medical Tourism, 2 BIOSOCIETIES 303,318 (2007). 97.
140. Terry, supra note 35, at 463-64 (internal quotation marks omitted).
141. Milstein & Smith, supra note 2, at 1639.
142. Mattoo & Rathindran, supra note 71, at 360.
143. See, e.g., Klaus, supra note 20, at 225 ("While paying greatly discounted prices for surgery, American patients traveling to Asia do not appear to sacrifice quality or incur greater risks of death or infection.");
144. Thomas R. McLean, The Global Market for Health Care: Economics and Regulation, 26 WlS. INT'L LJ. 591, 601 (2008) ("Surgical care provided in a Joint Commission Accredited hospital in India by a member of the Royal College of Surgeons is unlikely to be inferior to the same care provided in an American hospital with Joint Commission Accreditation by a member of the American College of Surgeons.").
145. Cortez, supra note 31, at 104;
146. Klaus, supra, note 20 at 226-27.
147. See, e.g., BOOKMAN & BOOKMAN, supra note 7, at 145-51;
148. HERRICK, supra note 12, at 16- 17.
149. See, e.g., Amitabh Chandra & Jonathan S. Skinner, Geography and Racial Health Disparities, in COMM. ON POPULATION, THE NAT'L ACADS., CRITICAL PERSPECTIVES ON RACIAL AND ETHNIC DIFFERENCES IN LATE LIFE 604 (Norman B. Anderson et al. eds., 2004);
150. Victor R. Fuchs et al., Area Differences in Utilization of Medical Care and Mortality Among U.S. Elderly, in NAT'L BUREAU OF ECON. RESEARCH, PERSPECTIVES ON THE ECONOMICS OF AGING 367 (David Wise ed., 2004);
151. see ako CTR. FOR THE EVALUATIVE CLINICAL SCIS., DARTMOUTH MED. SCH., THE DARTMOUTH ATLAS OF HEALTH CARE (1998), available at http://www.dartmouthatlas. org/downloads/atlases/98Atlas.pdf (providing detailed information by region of the United States).
152. Kristin Madison, Regulating Health Care Quality in an Information Age, 40 U.C. DAVIS L. REV. 1577,1583-84 (2007) (footnote omitted).
153. See Cortez, supra note 31, at 74, 91;
154. Leigh Turner, Medical Tourism: Family Medicine and International Health-Related Travel, 53 CAN. FAM. PHYSICIAN 1639,1640 (2007).
155. The closest (though still far-off) unpublished case I have seen (with very scant facts set out in the complaint) involved a suit in Pennsylvania federal district court by a man who underwent an allegedly unwanted heart surgery while in policy custody in Canada. Romah v. Scully, No. 06-698, 2007 WL 3493943 (W.D. Pa. Nov. 13, 2007). The case was dismissed for lack of personal jurisdiction over the Canadian hospital. Id. at *8. Below, I discuss whether facets of true medical tourism not present in diis case, such as advertising to try and reach foreign medical tourists, would produce different results as to personal jurisdiction.
156. See, e.g., HAW. REV. STAT. § 634-35 (1993)
157. IDAHO CODE ANN. § 5-514 (2004).
158. DEL. CODEANN. tit. 10, § 3104 (1999);
159. GA. CODEANN. § 9-10-91 (2007).
160. See JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE §3.13 (4th ed. 2005). One tempting (fact-dependent) work-around might be to re-characterize the claim in contract garb so as to take advantage of more favorable long-arm treatment of contractual ties. The problem is that as a matter of substantive law the successful "application of a contractual theory of liability in medical malpractice is rare" and in the domestic context courts have tended to re-characterize as med-mal contract claims by patients that try, for example, to take advantage of a longer statute of limitations for contract actions.
161. HALL ET AL., supra note 75, at 368;
162. see Sullivan v. O'Connor, 296 N.E.2d 183 (Mass. 1973) (permitting a patient to recover under a contract theory). Whether such a move would be more successful for long-arm jurisdiction purposes remains an open question. Federal Rule of Civil Procedure 4(k)(2) provides a broader long-arm statute for cases brought in federal court, but is limited to cases where the "claim arises under federal law," which do not include state law med-mal actions. FED. R. Crv. P. 4(k).
163. For diversity cases, the rules instruct the court to essentially piggy back on the state's long-arm and not exceed its reach. See Id.
164. See, e.g., CAL. Crv. PROC. CODE § 410.10 (West 2004);
165. PA. CONS. STAT. § 5322(b) (2006).
166. For a more thorough discussion of the current state of long-arm statutes in America, see Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the Limits of Due Process, 84 B.U. L. Rev. 491,525-31 (2004).
167. Int'l Shoe Co. v. Washington, 326 U.S. 310,316 (1945).
168. See Howze, supra note 5, at 1031-32.
169. See, e.g., Helicopteros Nacionales de Columbia, SA. v. Hall, 466 U.S. 408, 415 (1984);
170. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437,445-46 (1952).
171. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985). Of course, if a particular physician were to enter the forum state even briefly, the Supreme Court has suggested that serving process on the physician at that time will suffice to establish personal jurisdiction, either automatically, Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (Scalia, J.) (plurality opinion), or possibly constrained by some fairness requirement, id. at 638 n.12 (Brennan, J., concurring in the judgment). There is no reason to expect, however, that foreign physicians will enter the United States on any regular basis. As discussed abroad, some foreign physicians practicing in the medical-tourism industry are U.S. accredited, and it is possible diat in some cases those physicians will need to enter die United States to renew accreditation. However, even if "tag" jurisdiction becomes possible as to that subset of physicians during diat U.S. entry, the claims may at that point no longer be viable because of the statute of limitations.
172. See, e.g., Graduate Mgmt. Admission Council v. Raju, 241 F. Supp. 2d 589, 598-99 (E.D. Va. 2003) (finding personal jurisdiction where Indian defendant's website "targeted" die United States market, including by providing "specific ordering information for United States customer");
173. Howze, supra note 5, at 1031-32 ("If die plaintiff and Indian physician had Internet contact, however, die plaintiff may be able to establish specific jurisdiction based on email exchanges or perhaps an interactive website.").
174. See also Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1123-26 (W.D. Pa. 1997) (introducing "sliding scale" of internet personal jurisdiction occupied by "active," "interactive," and "passive" websites.).
175. For a more in-depdi discussion of die relationship between personal jurisdiction and die Internet,
176. see generally Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311 (2002);
177. Allan R. Stein, Personal Jurisdiction and the Internet: Seeing Due Process Through the Lens of Regulatory Precision, 98 NW.U.L.REV.411 (2004).
178. Wockhardt Hospitals, supra note 62.
179. Mink v. AAA Dev. LLC, 190 F.3d 333, 337 (5di Cir. 1999);
180. cf. McLean, supra note 100, at 634 ("[I]t seems clear enough diat merely operating a website is not enough to create minimum contacts with die forum state.").
181. Even with minimum contacts diere is a further constraint: die exercise of jurisdiction must be "reasonable" such diat it "does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). One of the factors in this analysis, the extent of the burden on the defendant to defend in the forum chosen by the plaintiff, militates against finding personal jurisdiction here. This factor, however, has to be balanced against other factors, such as the plaintiffs interest in obtaining convenient and effective relief (pushing towards jurisdiction) and the forum state's interest in litigating the dispute (whose significance is more uncertain, although if, as I suggest below, foreign law will likely apply to the dispute, its interest will be reduced).
182. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,113 (1987).
183. See Nathan Cortez, Recalibrating the Legal Risks of Cross-Border Health Care, 10 YALE J. HEALTH POL*Y L. & ETHICS 1,10 (2010) (discussing the mixed case law on whether referrals can give rise to personal jurisdiction).
184. MedRetreat itself appears to actually be operating out of Illinois, thus giving rise to territorial jurisdiction in that state.
185. See Turner, supra note 96, at 320 ("Efforts of medical brokerages to disavow legal duties to clients harmed while receiving care from a brokerage-identified health care facility have not yet been tested in a court of law.").
186. Kg., HALL ET AL., supra note 75, at 480 (discussing types of HMOs).
187. Indeed, some courts have allowed HMOs to get out from under the thumb of vicarious liability stemming from apparent-authority theories merely by disclaiming agency in documents available to the patients. See, e.g., Chase v. Indep. Practice Ass'n, 583 N.E.2d 251, 254-55 (Mass. App. Ct. 1991);
188. Jones v. U.S. Healthcare, 723 N.Y.S.2d 478, 478 (App. Div. 2001).
189. But see Petrovich v. Share Health Plan of 111., 719 N.E.2d 756, 767-68 (111. 1999) (disclaimer insufficient if patient did not read or understand it);
190. see also HALL ET AL., supra note 75, at 454 (noting that in part because "HMO lawyers have widely adopted these techniques, the working assumption among both plaintiffs and defense lawyers is that HMOs generally cannot be held vicariously liable simply by virtue of forming a network and requiring gatekeeping").
191. E.g., McClellan v. Health Maint. Org. of Penn., 604 A.2d 1053, 1058 (Pa. Super. Ct. 1992).
192. BARRY R. FURROWETAL., HEALTH LAW 404-05 (2d ed. 2000).
193. Id. at 405.
194. Cf. id. at 383-84 (discussing the role of compliance with Joint Commission regulations in negligence suits against hospitals). A separate theory of liability relating to the duty to supervise or control staff.
195. see id. at 405-06, is also unlikely to be applicable to these intermediaries, since they have very little direct control over the physicians in the destination- country facilities.
196. See HALL ET AL., supra note 75, at 480.
197. See id. at 492-93.
198. See Gail B. Agrawal & Mark A. Hall, What If You Could Sue Your HMO? Managed Care Liability Beyond theERISA Shield, 47 ST. LOUIS U. LJ. 235, 236 (2003). 131.For an in-depth discussion of both sides of that debate,
199. see Brady, supra note 36, at 1106-12. While the no-violation argument seems stronger, it has yet to be litigated.
200. Gulf OU Corp. v. Gilbert, 330 U.S. 501, 508 (1947);
201. see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257-61 (1981) (applying public-interest and private-interest factors).
202. See, e.g., Howze, supra note 5, at 1037 (noting that India would have an interest in a dispute involving an Indian physician).
203. Piper, 454 U.S. at 247. In Piper, Scottish law (which would have governed had the case been dismissed on forum non conveniens grounds and re-filed in Scotland) was less favorable to plaintiffs because it would have prevented their use of a strict-liability tort theory, permitted only relatives to sue for wrongful death, and limited damages to "'loss of support and society.1" Id. at 240.
204. See, e.g., Gonzalez v. Chrysler Corp., 301 F.3d 377, 382 (5th Cir. 2002) (holding that a $2500 cap on damages for the death of one's child under Mexican law did not establish that "the remedy available in the Mexican forum [was] clearly unsatisfactory");
205. Howze, supra note 5, at 1035.
206. Piper, 454 U.S. at 254 n.22 (citing Phoenix Can. Oil Co. v. Texaco, Inc., 78 F.R.D. 445 (D. Del. 1978), as holding that the "court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is no generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted").
207. My discussion of comparative med-mal law in the next Subpart is far from exhaustive and focuses on a few countries leading the medical-tourist trade. There may exist a country that does formally bar med-mal actions. If so, then forum non conveniens would not be an obstacle to bringing suit in that case, but all the other difficulties discussed in this Part would still apply.
208. 14D CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3828.3, at 686 (2007).
209. Id. § 3828.3, at 689;
210. see also Tuazon v. RJ. Reynolds Tobacco Co., 433 F.3d 1163, 1179- 80 (9th Cir. 2006) (noting the theoretical possibility that a particular foreign "legal system is so fraught with corruption, delay and bias as to provide no 'remedy at all'" but finding the showing in this case inadequate).
211. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220 (3d Cir. 1995).
212. Id.
213. see also Cortez, supra note 119, at 12 (discussing how features of the Indian medical-malpractice court systems may further limit the applicability of this reasoning to the medical-tourism sphere). 142.Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
214. Id. at 509. In analyzing the U.S.'s interest, the Piper court rejected the "incremental deterrence that would be gained if [the] trial were held in an American court." Piper, 454 U.S. at 260-61. That argument is even weaker here since the deterred physicians will see comparably fewer U.S. residents. On the other hand, in Piper there were two additional reasons to favor a forum non conveniens dismissal unlikely to be present in these cases: the fact that there was an ongoing civil case in the destination country against other defendants,
215. id. at 267, and the fact that the plaintiffs were not U.S. citizens, and thus had not chosen "the home forum" such that their forum choice was entitled less deference
216. id. at 255-56.
217. Howze, supra note 5, at 1030;
218. see also The Globalization of Health Care, supra note 3, at 43 (statement of Rajesh Rao) ("[T]he awards in any kind of litigation [in India] are proportionately lower [than in the United States].");
219. cf. Cortez, supra note 31, at 91 ("[India's] legal and regulatory systems are not comprehensive or mature like those of western countries.").
220. Howze, supra note 5, at 1034.
221. 146.Id. at 1035.
222. Ganapati Mudur, Indian Doctors Not Accountable, Says Consumer Report, 321 BRIT. MED. J. 588 (2000) (noting difficulty of obtaining and securing doctors to testify against other doctors).
223. w. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32, at 188 (5th ed. 1984);
224. Truill v. Long, 621 So. 2d 1278, 1280 (Ala. 1993). But see Leonard Berlin, Expert Testimony: A Contrary Perspective From the Trenches, 2 J. AM. COLL. RADIOL. 131, 132 (2005) (claiming "defendants have greater difficulty finding expert witnesses."). What matters is the comparative difficulty in getting experts and the comparable reliance on experts to prove cases in the United States and abroad, which can only be resolved on the kind of country-by-country analysis I don't pretend to offer here.
225. Cortez, supra note 31, at 106-07 (citing Mark Roth, A Cheaper Alternative for Those viith Minimal Health Insurance, Getting Surgery Abroad may be a Sound Option, PITTSBURGH POST- GAZETTE,Sept. 10, 2006, at Gl).
226. Id. at 106 (citing Kumaralingam Amirthalingam./udgj'ng Doctors and Diagnosing the Law: Bolam Rules in Singapore and Malaysia, 2003 SING. J. LEGAL STUD. 125).
227. Cortez, supra note 119, at 71.
228. For a particularly thorough just-published examination, spending fifty or so pages on an in-depth examination of the med-mal systems of India, Thailand, Singapore, and Mexico and concluding that in each jurisdiction, "U.S. medical tourists will struggle to obtain adequate compensation,"
229. see id. at 5, 18-77.
230. Kg, Kermit Roosevelt III, The Myth of Choice of Law: Rethinking Conflicts, 97 MICH. L. REV. 2448,2466 (1999).
231. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 146 (1971).
232. Id. § 145;
233. see also id. § 6 (multifactor test).
234. See Philip Mirrer-Singer, Note, Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism, LAW & CONTEMP. PROBS., Spring 2007, at 211, 226 ("Most medical-malpractice actions follow the lex loci delicti approach, whereby the law governing the case is that of the state in which the operation occurred."). The situation is somewhat more complex in cases where the negligent act occurs abroad but the injury is sustained at home. One author suggests that courts are more likely to apply whichever law favors the plaintiff. See Symeon C. Symeonides, Choice of Law in Cross Border Torts: Why Plaintiffs Win and Should, 61 HASTINGS L.J. 337 (2009). It seems unlikely that most medical tourism injuries will fall in this category. Cf. Cortez, supra note 119, at 14 (suggesting U.S. courts are unlikely to apply the plaintiffs home state law in the medical-tourism context to medical malpractice because doing so would force the foreign provider to comply with the diverging laws of the many different states from which patients come).
235. See, e.g., Blakesley v. Wolford, 789 F.2d 236 (3d Cir. 1986) (Texas rather than Pennsylvania law applied to a med-mal action where a Pennsylvania dentist in Pennsylvania diagnosed and advised the plaintiff to undergo oral surgery in Texas, where she was allegedly injured, even though she only felt the negative effects upon returning to Pennsylvania);
236. Pennsylvania Chadwick v. Arabian Am. Oil Co., 656 F. Supp. 857, 858, 860 (D. Del. 1987) (applying Saudi med-mal law to a suit by a Florida citizen who was allegedly treated negligently in Saudi Arabia by the doctor of a Delaware corporation and its subcontractor);
237. see also Jeffrey L. Rensberger, Choice of Law, Medical Malpractice, and Telemedicine: The Present Diagnosis with a Prescription for the Future, 55 U. MIAMI L. REV. 31, 69-74 (2000) (surveying case law in the somewhat analogous field of telemedicine).
238. Jenny S. Martinez, Towards an International fudicial System, 56 STAN. L. REV. 429, 511 (2003);
239. see also Antonio F. Perez, The International Recognition of fudgments: The Debate Between Private and Public Law Solutions, 19 BERKELEY J. INT'L L. 44, 57 & n.66 (2001) (noting the frequent claim that "foreign courts are inclined either not to enforce U.S. judgments or to otherwise discriminate against U.S. citizens," but also recognizing that most of the support for a claim is anecdotal rather than empirical).
240. See, e.g., I. Glenn Cohen, The Right Not To Be a Genetic Parent?, 81 S. Cal. L. Rev. 1115, 1161-87 (2008);
241. Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale LJ. 763, 766 (1983).
242. In these respects I largely follow an approach I have taken to somewhat analogous questions in prior work. See, e.g., Cohen, supra note 158, at 1161-96.
243. Kurt VonnegutJr., Slaughterhouse-Five 2 (1969).
244. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L, REV. 1159,1159-60 (2003).
245. Cf. Jennifer Arlen, Contracting Over Liability: Medical Malpractice and the Cost of Choice, 158 U. Pa. L. Rev. 957, 961 & nn.9-10, 970 (2010) (discussing debate over whether patients domestically face information problems dooming contracting for medical malpractice protection and the "unobservable" nature of the "risk of being injured by medical error.);
246. Richard A. Epstein & Alan O. Sykes, The Assault on Managed Care: Vicarious Liability, ERISA Preemption, and Class Actions, 30 J. LEGAL STUD. 625, 644-48 (2001) (discussing similar problems with domestic providers).
247. U.S. Department of State, Current Travel Warnings, http://travel.state. gov/travel/cis-pa-tw/tw/tw-1764.html (last visited July 18, 2010).
248. See supra notes 145-50 and accompanying text.
249. The Pennsylvania scheme requires hospitals to report various data to the Pennsylvania Health Care Cost Containment Council, which then "publishes annual report cards that present individual hospitals' and physicians' risk-adjusted mortality and readmission rates for cardiac bypass surgery as well as various quality measures for hip and knee replacement." Madison, supra note 104, at 1591. New York's system is similar.
250. See id. at 1610;
251. M.R. Chassin et al., Benefits and Hazards of Reporting Medical Outcomes Publicly, 334 NEW ENC.J. MED. 394, 394-96 (1996).
252. Madison, supra note 104, at 1590 & n.39. California, Maryland, and Minnesota, among other states, have attempted similar systems.
253. Id. at 1590 n.39.
254. Id. at 1590;
255. Frances H. Miller, Illuminating Patient Choice Releasing Physician-Specific Data to the Public, 8 LOY. CONSUMER L. REP. 125, 128 (1995-1996).
256. 35 PA. Stat. ANN. §449.5 (2005);
257. Pennsylvania Health Care Cost Containment Council, About the Council, http://www.phc4.org/council/mission.htm (last visited July 18, 2010).
258. See, e.g., Mattoo & Rathindran, supra note 71, at 360;
259. Apollo Hospitals, Medical Milestones of the Apollo Hospitals Group, http://www.apollohospitals.com/milestones-a-accolades/medical-milestones.html (last visited July 18, 2010).
260. 42 U.S.C. § 263a-5(l)(A) (2006). The data is available at http://www.cdc.gov/art/ART Reports.htm.
261. For a good summary of the current state of play, see Kristin Madison, The Law and Policy of Health Care Quality Reporting, 31 CAMPBELL L. REV. 215, 215-36 (2009).
262. Studdert et al., supra note 91, at 2028.
263. See, e.g., Arlen, supra note 162, at 97;
264. Michelle M. Mello & David M. Studdert, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries, 96 GEO. LJ. 599, 600-02 (2008).
265. 174. HALLETAL., supra note 75, at 442;
266. Kathryn Zeiler et al., Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003, 36 J. LEGAL STUD. S9, S18 n.17 (2007) (discussing such gaming of the non-public National Practitioner Data Bank, which requires the reporting of any claim paid out against a doctor, including a settlement of any size).
267. See, e.g., David M. Cutler et al., The Role of Information in Medical Markets: An Analysis of Publicly Reported Outcomes in Cardiac Surgery, 94 AM. ECON. REV. (PAPERS & PROC.) 342, 345 (2004).
268. Carl E. Schneider & Mark A. Hall, The Patient Life: Can Consumers Direct Health Care?, 35 Am.J.L& MED. 7(2009). N
269. The Kaiser Family Found. & Agency for Health Care Research & Quality, National Survey on Americans as Health Care Consumers: An Update on the Role of QUALITY INFORMATION (2000), available at http://vnvw.ahrq.gov/ downloads/pub/kffchartbkOO. pdf.
270. Chassin et al., supra note 165, at 394-96;
271. Richard G. Frank, Behavioral Economics and Health Economics 20-21 (Nat'l Bureau of Econ. Research, Working Paper No. 10881, 2004), available at http://www.nber.org/papers/wlO881.
272. Madison, supra note 104, at 1637. As to the med-mal deficiencies, the advent of patient med-mal insurance, which I will discuss below, does not fully mitigate these problems because these same deficits may also affect the decision whether to buy insurance ab initio and in what amounts.
273. 18 U.S.C. §2423(c), (f) (2006). Other comparable models are the Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (codified as amended in scattered sections of 15 U.S.C.), and the Economic Espionage Act of 1996,18 U.S.C. §§ 1831-39 (2006).
274. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 643 (1969) (Stewart, J., concurring), overruled in part by Edelman v. Jordan, 415 U.S. 651 (1974);
275. Christopher S. Maynard, Note, Nine-Headed Caesar: The Supreme Court's Thumbs-Up Approach to the Right to Travel, 51 CASE W. RES. L. REV. 297, 317 (2000).
276. Motorcycle-helmet laws are a good analogy and have largely been upheld as constitutional. See, e.g., Melissa Neiman, Motorcycle Helmet Laws: The Facts, What Can Be Done to Jump-Start Helmet Use, and Ways to Cap Damages, 11 J. HEALTH CARE L. & Pol"y 215, 237 (2008) (collecting cases). If the issue was ever litigated in diis context, the government could presumably argue that even if wholly partemalistic legislation was problematic (far from clear), as in the motorcycle context, its interest is not wholly paternalistic in that, should injury result to the tourist patient, it may bear the disability costs. E.g., Picou v. Gillum, 874 F.2d 1519, 1522 (11th Cir. 1989) (updholding motorcycle-helmet law in part on this basis). The D.C. Circuit's en bane decision in Abigail Alliance for Better Access to Experimental Drugs v. von Eschenbach, upholding die Food and Drug Administration's prohibition on the purchase of experimental drugs outside of clinical trials for lack of a constitutional right protected by substantive due process, would also seem to suggest constitutional leeway for paternalistic intervention here. Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007).
277. Whether that clause has a proportionality requirement for incarceration is a very unsettled question. See Rachel A. Van Cleave, "Death Is Different," Is Money Different? Criminal Punishments, Forfeitures, and Punitive Damages-Shifting Constitutional Paradigms for Assessing Proportionality, 12 S. CAL. INTERDISC. LJ. 217, 223-45 (2003) (discussing whether the Eighth Amendment requires proportionality for imprisonment). If a fine was used (and interpreted as criminal), it too may need to be set with an eye to the Eighth Amendment's Excessive Fines Clause, which the Court has applied to criminal forfeitures. United States v. Bajakajian, 524 U.S. 321, 333 n.8 (1998). Courts have rejected other constitutional objections to the PROTECT Act, upholding it as a lawful exercise of Congress' Foreign Commerce Clause power and not in violation of international law regarding extraterritoriality. United States v. Clark, 435 F.3d 1100, 1103 (9th Cir. 2006). A medical-tourism prohibition seems to be on still surer footing in this regard because it is more directly tied to goods that move through international commerce. This is so because unlike the PROTECT Act, it does not purport to criminalize non-purchased services, and it seeks to protect U.S. citizens rather than those abroad.
278. 42 C.F.R. § 482.102(b)(9) (2009).
279. EMTALA requires such facilities to "screen[]" any patient that presents herself to determine "whether or not an emergency medical condition [within the meaning of the statute] exists," and if it does then the hospital must either stabilize (give "treatment as may be required to stabilize the medical condition") or transfer the patient to another facility, which can be done only if the patient requests the transfer in writing after being informed or if a healdicare provider certifies diat "the medical benefits reasonably expected from die provision of appropriate medical treatment at another medical facility outweigh the increased risks to die individual." Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. §§ 1395dd(a)-(d) (2006);
280. see, e.g., Burditt v. U.S. Dep't. of Healdi & Human Servs., 934 F.2d 1362, 1368-73 (5th Cir. 1991). EMTALA actually applies to any patient regardless of indigence or insurance status.
281. I.R.C. §213(a) (2006).
282. Seeid.;
283. see also 26 C.F.R. § 1.213-l(e)(v)(c) (2010) ("It is immaterial for purposes of this subdivision whedier die medical care is furnished in a Federal or State institution or in a private institution.").
284. I.R.C. §213 (d)(9)(A). Tax law purists might argue that cosmetic surgery is not analogous based on the theoretical underpinnings of section 213. Tax theorists split between two positions. The minority position (advocated prominently by Stanley Surrey) viewed the medical expenditures as tax expenditures and thus properly includable in the income tax base. The majority view on the other hand (advocated prominently by William Andrews), held that the ideal income-tax base should reflect material well-being instead of just consumption, and that die utilization of medical services should be excludable because it represents not greater well-being on the part of die user but greater medical need. See, e.g., Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. Rev. 1121, 1165-72 (2004). On the majority view, the exclusion of cosmetic surgery makes sense as die exception that proves die rule (a case where greater utilization of medical services does reflect greater well-being), but an exclusion for medical tourism would run afoul of diat rule. I acknowledge the point and accept that for such purists, the "pollution" of the purposes of section 213 in this manner might count against it as a potential intervention.
285. Indeed, because the deductibility threshold is a function of AGI, those with high incomes, even if uninsured, have a higher direshold and are unlikely to have medical expenses from medical tourism exceeding the threshold. Thus, the main targets of this policy will be the middle class.
286. I.R.C. § 223(2006);
287. see also Timothy S.Jost & Mark A. Hall, The Role of State Regulation in Consumer-Driven Health Care, 31 AM.J.L. & MED. 395, 395-97 (2005) (discussing HSAs).
288. Mattoo & Rathindran, supra note 71, at 361.
289. Mat 361 exhibit 1.
290. Aaron D. Twerski & Neil B. Cohen, The Second Revolution in Informed Consent: Comparing Physicians ToEach Other, 94 Nw. U. L. REV. 1,13 n.30 (1999) (collecting studies).
291. See supra text accompanying notes 70-74.
292. Conez, supra note 31, at 125-26.
293. Of course, it may be parochial to simply assume that U.S. training correlates with high quality, especially given how many U.S. physicians are foreign educated. See Mattoo & Rathindran, supra note 71, at 359 (noting that, in 2004, roughly a quarter of the 853,187 U.S. physicians licensed in the United States were foreign trained, 21% of them Indian, and they made up a fifth of all faculty members at U.S. medical schools). At a bare minimum, for any sensible proposal, training in other Western nations ought to count.
294. The U.S. Supreme Court has repeatedly upheld jurisdiction premised on such clauses. See Carnival Cruise lines, Inc. v. Shute, 499 U.S. 585 (1991);
295. MS Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). Although both decisions suggest some theoretical limits on the enforceability of such clauses, Bremen, 407 U.S. at 10 ("[S]uch clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances");
296. Carnival Cruise Lines, 499 U.S. at 595 (stating such "contracts are subject to judicial scrutiny for fundamental fairness"), the use of such clauses in this context are unlikely to run afoul of those limitations, particularly given that here the forum-selection clause does not work against the patient and foreign facilities are sophisticated bargainers.
297. Cf. Hess v. Pawlowski, 274 U.S. 352, 354 (1927) (holding constitutional to confer personal jurisdiction a statute treating a nonresident's operating a vehicle on a public highway as "deemed equivalent to an appointment by such non-resident of the registrar or his successor in office").
298. See, e.g., JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE: CASES AND MATERIALS 187-88 (10th ed. 2009);
299. Mark Schuck, Comment, Foreign Corporations and the Issue of Consent to Jurisdiction Through Registration to Do Business in Texas: Analysis and Proposal, 40 HOUS. L. REV. 1455, 1455-58 (2004) (discussing TEX. Bus. CORP. ACT Ann. art. 8.01 (Vemon 2003)).
300. But see, e.g., Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 180-83 (5th Cir. 1992) (expressing reluctance at finding Due Process requirement for personal jurisdiction satisfied by mere registration);
301. Ratliff v. Cooper Lab., Inc., 444 F.2d 745, 748 (4th Cir. 1971) (noting an application to do business "is of no special weight" for personal jurisdiction analysis).
302. Jens Dammann & Henry Hansmann, Globalizing Commercial Litigation, 94 CORNELL L. REV. 1,39-40(2008).
303. Restatement (Second) of Conflict of Laws §§ 186-88 (1971).
304. The "override" is unlikely to apply here because the patient's home state would seem to have a "substantial relationship" to the parties. Id. Further, application of its law does not seem "contrary to a fundamental policy of a state which [(i)] has a materially greater interest than the chosen state in the determination of the particular issue and which ... [(ii)] would be the state of the applicable law in the absence of an effective choice of law by the parties." Id. § 187(2).
305. For discussion of this question, see, for example, Kenneth A. DeVille, The Jury Is Out: Pre-DispuU Binding Arbitration Agreements for Medical Malpractice Claim, 28 J. LEGAL MED. 333 (2007);
306. Roiph et al., supra note 91.
307. Such a requirement would also open up the possibility for a second form of personal jurisdiction-quasi in rem-using the bonded assets as the res. However, this form of jurisdiction too "must be evaluated according to the standards set forth in International Shoe and its progeny." Shaffer v. Heitner, 433 U.S. 186, 208-12 (1977).
308. U.S. CONST, art. IV, § 1;
309. Dammann & Hansmann, supra note 200, at 40-41.
310. N.Y. C.P.L.R. 302(a)(2) (McKinney 2001).
311. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721-22 (1996).
312. Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674,675-79 (Tex. 1990) (construing TEX. Civ. Prac. & REM. CODE Ann. § 71.031 (Vemon 1986));
313. see Allan R. Stein, Erie and Court Access, 100 Yale L.J. 1935, 1935 (1991). That Texas Supreme Court decision was overruled by a statute passed by the Texas state legislature reestablishing forum non conveniens, but only for actions filed on or after September 1, 1993. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (citing TEX. Crv. PRAC. & Rem. Code Ann. § 71.051). The passage of such a statute would raise interesting Erie questions as to its application in federal court in diversity cases. My own reading of the Erie doctrine is that federal courts would apply the statute, but intriguingly, the few cases on the Texas statute seem to implicitly assume the opposite (without any analysis). See id. ("[P]laintiffs obviously prefer Texas State court to federal court, where f.n.c. applies.").
314. SceRESTATEMENT(SECOND)OFCONFUCTOFLAWS§6(l) (1971).
315. Cortez, supra note 119, at 17-18,85-86.
316. For the sake of completeness, let me mention another possible, but in my estimation much less politically feasible, measure. The U.S. federal or state governments could create a fund to compensate victims of medical-tourism med-mal. The model here would be something like the National Vaccine Injury Compensation Program. 26 U.S.C. § 9510 (2006);
317. U.S.C. § 300aa-10(a)-(c) (2006);
318. see Gordon Shemin, Comment, Mercury Rising: The Omnibus Autism Proceeding and What Families Should Know Before Rushing Out of Vaccine Court, 58 AM. U. L. Rev. 459, 467-78 (2008) (describing the workings of the National Childhood Vaccine Injury Compensation Act). Here, a better model would be to permit an election of this remedy rather than making it preclusive. Scholars have proposed comparable models for health courts or no-fault compensation systems as a reformation of med-mal litigation against domestic providers.
319. See, e.g., Peters, supra note 91, at 230-36 (discussing health-court proposals);
320. Studdert et al., supra note 91, at 10-18 (comparing the costs of the U.S. injury-compensation system to certain no-fault systems). Such a scheme could be funded by levying a fee on facilities that wished to be part of the "approved" list and using that revenue to pay for this system. Alternatively, funding could come from charging insurers using medical tourism (the focus of Part V) a per-patient fee and using diat revenue to cross-subsidize the no-fault compensation system for uninsured patients. One risk of this approach is that it creates inequity between victims of domestic- and foreign-provider med-mal-only the latter can elect the compensation scheme. One possible rejoinder is that while the medical-tourist patient may "benefit" in this regard, it is only because her chance of succeeding in a regular med-mal civil suit is so greatly diminished as compared to the patient getting care domestically, though this may be unsatisfying.
321. Whether it would be rational for them to do so would depend in part on whether adopting a channeling system would result in a decrease or increase in medical tourism as against the status quo lack of regulation. That in turn depends on both the mechanism of channeling used and the provider or service characteristics upon which channeling operates. If the requirements to become "approved" are minimal, and the penalty for unapproved use is insignificant, they may conclude the regime is more of a threat. Especially regarding insurer-prompted medical tourism, there is also the possibility of countervailing lobbying by businesses and insurers. All that, however, is subject to the caveat that the dynamic effects in the foreseeable future may be too small to motivate significant lobbying of this sort.
322. Adopted in 1995 at the conclusion of the Uruguay round of multilateral negotiation that created the WTO, GATS produced a legal framework to liberalize trade in services (rather than goods), including healthcare. Patricia J. Arnold & Terrie C. Reeves, International Trade and Health Policy: Implications of the GATS for US Healthcare Reform, 63 J. Bus. ETHICS 313, 315 (2006). While GATS imposes general obligations that apply to all WTO members, it imposes obligations relating to "market access" (art. XVI) and "national treatment" (art. XVII) on nations that have explicitly elected to be bound by them; violations of these obligations are subject to trade sanctions. General Agreement on Trade in Services arts. I, XXVIII, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IB, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) [hereinafter GATS];
323. Arnold & Reeves, supra, at 317. These obligations-called "specific commitments"-are made as to particular service sectors and particular modes of service (cross-border supply, consumption abroad, etc.). GATS, supra, art. III. The United States has in fact made a "Mode 2" (consumption abroad) commitment to the "Hospital Services" sector that would cover a large swath of medical-tourism services-it includes inter alia surgical, medical, ob-gyn, nursing, laboratory, radiological, anesthesiological, and rehabilitation services-with only a single limitation: that "[f]ederal or state government reimbursement of medical expenses may be limited to licensed, certified facilities in die United States or in a specific U.S. state."
324. Arnold & Reeves, supra, at 316-18. Thus, Medicaid/Medicare may refuse to reimburse for medical tourism.
325. Id. at 316. Because GATS specific commitments apply to "[mjeasures," which are understood broadly to include regulations, rules, procedures, decisions, or administrative actions whether adopted by federal, state, or local bodies, GATS, supra, arts. I, XXVIII, federal or state laws (including ones regulating insurance) as to medical tourism that conflict with GATS specific commitments can be challenged through the WTO dispute-resolution system as illegal "barriers to trade."
326. Arnold & Reeves, supra, at 317-18. It is possible that some of these channeling interventions (especially by type of service) may violate the market-access obligation contained in article XVI(2) of the GATS in die same way that certificate-of-need regulations in die United States diat limit the type of services provided may do so. GATS, supra, art. XVI(2);
327. Arnold & Reeves, supra, at 318. The more serious concern is posed by the national-treatment obligation, which requires die United States to "accord to services and service suppliers of any odier Member, in respect of all measures affecting die supply of services, treatment no less favourable dian diat it accords to its own like services and service suppliers," specifying diat treatment is "less favourable if it modifies the conditions of competition in favour of services or service suppliers of die Member compared to like services or service suppliers of any odier Member." GATS, supra, art. XVII. In analysis of some parallel issues in teleradiology. Thomas Mclean and Edward Richards have suggested that the GATS Domestic Restrictions clause allowing the imposition of licensing or certification requirements, so long as they are not "'more burdensome than necessary to ensure the quality of the service,'" will not give the U.S. government sufficient room to maneuver.
328. Thomas R. McLean & Edward P. Richards, Teleradiology: A Case Study of the Economic and Legal Considerations in International Trade in Telemedicine, 25 HEALTH AFT. 1378, 1381 (2006) (quoting GATS, supra, art.VI(4)). There are many open questions here: Would particular types of channeling provisions fare better than others in the analysis? Would the expansion of vicarious liability fare differently? To the extent the GATS does pose problems, what penalties would the United States face if it violated or tried to renegotiate these GATS obligations, and would those penalties be worth it? These are all interesting question, each of which I leave to further work by trade specialists.
329. All that said, it is worth noting that these types of channeling interventions might be more successful if targeted at medical tourist intermediaries. While I do not focus on these intermediaries in-depth in this Article, this possibility raises three further questions. First, what share of the medical tourism by under and underinsured individuals is done through intermediaries? Second, to what extent can intermediaries successfully reorganize and relocate to avoid any such requirements imposed by U.S. law? Third, to what extent do the intermediaries have a sufficient incentive to adopt forms of channeling themselves to compete for market share? On this last point, others have noted that existing intermediaries have engaged in some shady practices in promoting their services.
330. See, e.g., Cortez, supra note 31, at 118 ("Most foreign providers and brokers market their services on the Internet, and a sampling of these sites shows they can be aggressive and potentially misleading. Sites include patient testimonials, breezy descriptions of idyllic sightseeing tours, and even quality comparisons that disparage U.S. providers.... [One] broker assures patients who may be concerned about medical malpractice that they 'have the right to seek redress in the Indian court system similar to the procedure followed here in the U.S. [sic],' a claim that is woefully misleading." (citation omitted)).
331. Carmen DeNavas-Walt et al., U.S. Census bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2006, at 19 (2007), available at http://www.census. gov/prod/2007pubs/p60-233.pdf.
332. 42 U.S.C. § 1395dd(e)(l) (2006) (defining "emergency medical condition" as "acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in ... placing the health of the individual" in "serious jeopardy," "serious impairment to bodily functions," or "serious dysfunction of any bodily organ or part").
333. The Henry J. Kaiser family Found., The Uninsured: a Primer: Key Facts About Americans Without Health Insurance 4-5 (2009);
334. John Holahan et al., The Henry J. Kaiser Family Found., Characteristics of the Uninsured: Who Is Eligible for public Coverage and Who Needs Help Affording Coverage 1-16 (2007), available at http://www. kff.org/uninsured/ upload/7613.pdf;
335. Nan D. Hunter, Risk Governance and Deliberative Democracy in Health Care, 97 GEO. L.J. 1, 58 (2008) (citing CTR. ON BUDGET & POUCY PRIORITIES, MORE Americans, Including More Children, Now Lack Health Insurance 2 (2007), available at http://www.cbpp.org/8-28-07health.pdf);
336. Rick Mayes, Universal Coverage and the American Health Can System in Crisis (Again), 7J. HEALTH CARE L. & POL'Y 242, 249 (2004).
337. For a critique of this tendency, see Sara Rosenbaum, A Dose of Reality: Assessing the Federal Trade Commission/Department of Justice Report in an Uninsured, Underserved, and Vulnerable Population Context, 31 J. HEALTH POL. POL'Y & L. 657, 665-66 (2006).
338. One very complex question is how to evaluate the effect that growth of the medical-tourism market would have on the size of the population that purchases health insurance. It may cause a rational actor to eschew buying health insurance for nonemergency care since he now can pay out of pocket for that care at a lower cost if the need arises. In the other direction, the availability of lower-cost insurance plans that incentivize or require some amount of medical tourism, discussed in Part V, may expand the covered population. On the normative side, one would also need to consider whether insurance coverage is valued primarily because of its care-providing effects for particular patients or because of its effect on broadening the population covered by insurance, thus enabling redistribution through cost sharing, what Allison Hoffman has called "health solidarity." See Allison Hoffman, Oil and Water: Mixing Individual Mandates, Fragmented Markets, and Health Reform, 36 AM. J. L. & MED. 7 (2010). Further complicating die analysis is that medical tourism may increase the amount of nonemergency care that uninsured individuals can access, as well as reduce the amount of care diat is externalized via EMTALA admissions. As discussed in more depth below, infra text and accompanying notes 220-23, the most recent healthcare reform put into law by the Obama Administration may blunt some of these concerns to the extent it will penalize individuals for failing to have health insurance, although that penalty is only set to start in 2014 and will not completely phase in until 2016. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1501, 1513 (2010) (to be codified at I.R.C. §§ 5000A, 4980).
339. Patient Protection and Affordable Care Act; Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152.
340. See Patient Protection and Affordable Care Act §§ 1501, 1513. Indeed, since the individual-mandate penalty phases in between 2014 and 2016,
341. see id. § 1501, this may overstate when we will begin to see its true effects.
342. Letter from Douglas W. Elmendorf, Dir., Cong. Budget Office, to Nancy Pelosi, Speaker, U.S. House of Representatives 9, available at http://www.cbo.gov/doc.cfm?index= 11379&type=l. To be precise, the CBO estimates that about one-third of those 23 million nonelderly are "unaudiorized immigrants."
343. Id.
344. It is also worth emphasizing diat medical tourism could never be a complete solution to a lack of insurance in this country because a substantial portion of all uninsured are unlikely to avail diemselves of it for a myriad of reasons (too sick to travel, unable to afford even the reduced costs of the procedure through medical tourism, have never left their home state before, etc.).
345. See Norman Daniels, Just Health: Meeting health Needs Fairly 29-78 (2008). Daniels, a Rawlsian, connects the special importance of health to its importance in ensuring equality of opportunity to ensure access to the "normal opportunity range"-the "array of life plans reasonable persons are likely to develop for themselves."
346. Id. at 43;
347. see id. at 29-60 (discussing health needs and how they relate to normal functioning and access to opportunities). Martha Nussbaum, writing from a more aretaic perspective (i.e., Aristotelian, focusing on character, virtue, and human flourishing), has also singled out health as having particular importance in her capabilities/functioning theory. MARTHA C. NUSSBAUM, FRONTIERS of Justice: Disability, Nationality, Species Membership 75-76 (2006).
348. See, e.g., Sivaramjani Thambisetty, Patents as Credence Goods, 27 OXFORD J. LEGAL STUD. 707, 726 (2007);
349. see also supra notes 103-04, 177-79 and accompanying text (discussing information deficits and bounded-rationality problems).
350. This represents one place where departing from the analogical aspect of my approach might lead in a different direction. It is open to the critic to suggest that the laissa-fain attitude towards bungee jumping or the consumption of other services is the wrong turn, and dius forms a poor touchstone for analysis. This might produce an interesting new project that inverts my own: the concerns raised by medical tourism allow us to see it as one instance of a more general problem posed by service quality and tort recovery for services consumed abroad. It would be particularly useful to identify other kinds of services that pose agency problems similar to the ones I discuss in Part V.
351. Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441, 442 (Cal. 1963).
352. Id. at 442-49.
353. Id. at 446.
354. Id. at 446-47.
355. Id. at 447.
356. See, e.g., Belshaw v. Feinstein, 65 Cal. Rptr. 788, 798 (Ct. App. 1968) (discussing neurosurgery);
357. Emory Univ. v. Porubiansky, 282 S.E.2d 903, 903-05 (Ga. 1981) (discussing dental services);
358. Cudnik v. William Beaumont Hosp., 525 N.W.2d 891, 892-93 (Mich. Ct. App. 1994) (discussing radiation therapy for cancer);
359. Ash v. N.Y. Univ. Dental Ctr., 564 N.Y.S.2d 308, 309 (App. Div. 1990) (discussing dental services);
360. Olson v. Molzen, 558 S.W.2d 429, 429-31 (Tenn. 1977) (discussing abortion);
361. Eelbode v. Chec Med. Ctrs., Inc., 984 P.2d 436, 440-41 (Wash. Ct. App. 1999) (discussing physical therapy).
362. See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge 207-14 (2008);
363. Richard Epstein, Medical Malpractice: The Case for Contract, 1 AM. B. FOUND. RES.J. 87, 119 (1976);
364. Glen O. Robinson, Rethinking the Allocation of Medical Malpractice Risks Between Patients and Providers, LAW & CONTEMP. PROBS., Spring 1986, at 173,185.
365. Philip G. Peters, Jr., The Quiet Demise of Deference to Custom: Malpractice Law at the Millennium, 57 WASH. & LEE L. REV. 163,170 (2000).
366. Id.
367. See, e.g., Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985);
368. BARRYR. FURROWET AL., LIABILITY and Quality Issues in Health Care 147-48 (5th ed. 2004).
369. Ronen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. LEGAL STUD. S183, S191-94 (2007).
370. 28 U.S.C.§ 1332 (2006).
371. See U.S. CONST, art. IV (requiring states to treat citizens of other states the same as citizens of their own state);
372. U.S.C. § 1738 (granting full faith and credit to the laws of the several states).
373. Cf. Clark C. Havighurst, Private Reform of Tort-Law Dogma: Market Opportunities and Legal Obstacles, LAW & CONTEMP. PROBS., Spring 1986, at 143, 164 (arguing that Tunkl "should not control the outcome of a case in which something substantially less than complete immunity is sought").
374. Madden v. Kaiser Found. Hosps. 552 P.2d 1178, 1180-85 (Cal. 1976). For more cases upholding these agreements.
375. see infra note 247 and cases cited therein.
376. Madden, 552 P.2d at 1185.
377. Id. at 1185-86. One point in favor of enforcement without an analog was that there were also "benefits of the arbitral forum" for the patients as a group by "facilitating] the adjudication of minor malpractice claims which cannot economically be resolved in a judicial forum."
378. Id. at 1186.
379. In the arbitration context, courts have thus been more inclined to enforce agreements when they were made in advance rather than at the point of service. See HALL ET AL., supra note 75, at 422 (citing Broemmer v. Abortion Servs. of Phoenix, 840 P.2d 1013 (Ariz. 1993);
380. Obstetrics & Gynecologists v. Pepper, 693 P.2d 1259 (Nev. 1985);
381. Sosa v. Paulos, 924 P.2d 357 (Utah 1996)). The physician in the foreign destination is also certainly not holding himself open to any American patient who presents himself for care, a factor that the Tunkl court harped on.
382. Ian Ayres, Menus Matter, 73 U. CHI. L. REV. 3, 6 (2006).
383. Alan Scott Rau et al., Processes of Dispute Resolution 612 (4th ed. 2006).
384. Id. (quoting In re Arbitration Between Silverman & Benmor Coats, Inc., 461 N.E.2d 1261,1266 (N.Y. 1984);
385. Leach v. Harris, 69 N.C. 532 (1873).
386. 9 U.S.C. § 9 (2006);
387. see, e.g., IDS Life Ins. Co. v. Royal Alliance Assocs., 266 F.3d 645, 653 (7th Cir. 2001);
388. FRIEDENTHAL ET al., supra note 199, at 1372-77 (discussing powers). Another distinction is that the Federal Arbitration Act allows federal courts to review decisions by the arbitrator, albeit under extremely narrow standards aimed at fraud or egregious misconduct. 9 U.S.C. § 10;
389. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995).
390. See, e.g., Engalla v. Permanente Med. Group, 938 P.2d 903,908,912 (Cal. 1997).
391. See, e.g., DeVille, supra note 203, at 378-87 (discussing problems with arbitration).
392. See, e.g., Arlen, supra note 162, at 1007-08 n.123.
393. Further, to the extent the concern is about searches for emergency services, that is the type of service for which medical tourism is not typically sought.
394. Arlen, supra note 162, at 963,966,992-97.
395. Id.
396. See id. at 963,966,997-1000.
397. Id.
398. Might the U.S. medical tourist actually face a lower standard of care than the patient from the destination country because the foreign physician is discounting for the reduced likelihood the U.S. patient will sue him at all? This would depend both on highly contested questions of the extent med-mai liability alters physician behavior and expected value calculations by physicians assessing the likelihood of suit, verdict size, and cost of potentially defending litigation if brought in the U.S. despite the already-discussed obstacles. There are many interesting and hard empirical questions here, but the aforementioned lumpiness of investments in care quality make it unlikely that foreign physicians could alter care to disfavor Americans. The one exception would be a medical-tourist facility or provider who catered exclusively to medical tourists, but unless his clientele was exclusively American, the hyper-rational provider would theoretically be responding to expected value calculations about liability to all his tourist patients who may hail from multiple different countries each of which has their own civil procedural and substantive med-mal laws which may lead to different likelihoods of maintaining a successful suit and amounts of recovery. Indeed, on some patient mixes, a physician treating medical tourists may have a higher incentive to adopt care-enhancing investments than a physician abroad treating only the domestic population.
399. See, e.g., W. Coast Hotel v. Parrish, 300 U.S. 379, 394 (1937) (upholding minimum-wage laws from constitutional challenge).
400. In theory, there is the possibility that we might see a different kind of unraveling dynamic with a "race to the bottom," wherein the need to compete against medical-tourist centers forces U.S. states to alter their substantive med-mal laws or at least or relax the prohibition on waiver. Cf. Mark J. Roe, Delaware's Politics, 118 HARV. L. Rev. 2491, 2498-2504 (2005) (discussing race-to-the-bottom and race-to-the-top accounts of how Delaware competes with other states through its corporate law). As I suggested above,
401. see supra note 30, it seems very unlikely that in the foreseeable future we would see the kind of volume of medical tourism needed to marshal that kind of pressure. Further, as discussed above, it is also unclear how much changing states' med-mal liability rules standing alone would help in bridging the cost chasm between medical tourism and domestic provision of the services.
402. How much current patients know about their med-mal recovery chances when they choose foreign providers is an open question, but as discussed above, information-forcing interventions will, to some extent, improve the conditions of choice.
403. The following description is drawn from AOS, Patient Medical Malpractice Insurance (PMMI), http://www.aosassurance.bb/PublicHunl/readmore.htm (last visited June 1,2010).
404. AOS, Frequently Asked Questions, http://www.aosassurance.bb/PublicHtml/ PMMI-FAQ.htm (last visited July 21, 2010).
405. AOS, Patient Medical Malpractice Insurance (PMMI) Product Sheet, http://www. aosassurance.bb/PublicHtml/Documents/PMMI/PMMI%20Product%20Sheet.pdf (last visited July 21,2010).
406. Id. at 2.
407. Id.
408. Id. This has a similar effect to an intervention channeling by provider that I discuss next.
409. AOS, Quick Quote for Patient Medical Malpractice Insurance (PMMI), https://www. aosassurance.bb/Reaktor2K7/application/quickquote/quickquote.aspx (last visited July 21, 2010). This quote was achieved by selecting "Coronary bypass and grafting" in the "Procedure" drop-down and "$1,000,000" from the "Amount of insurance coverage in US$" drop-down on Oct. 20,2008.
410. Id.
411. See supra text accompanying notes 12 and 40.
412. « Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages Caps, 80 N.Y.U. L. REV. 391, 400 (2005) (discussing and collecting positions on the issue). Steven Croley and John Hanson have suggested that individuals do in fact want such insurance but that several impediments exist, preventing the emergence of such a market. Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain-andSuffering Damages in Tort Law, 108 HARV. L.REV. 1785, 1791 (1995).
413. Cortez, supra note 119, at 17-18,85-86.
414. For some representative entries,
415. see supra note 103.
416. FURROW ETAL., supra note 125, at 59-71;
417. HALLETAL., supra note 75, at 1178-84.
418. FURROWETAL., supranole 125, at 61;
419. HALLETAL., supra note 75, at 1179.
420. Bd. of Med. Quality Assurance v. Andrews, 260 Cal. Rptr. 113, 122 (Ct. App. 1989);
421. FURROWETAL., supra note 125, at 63.
422. E.g., FURROW ET AL., supra note 125, at 60;
423. Walter Gelhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REV. 6, 13-18 (1976);
424. Reuben Kessel, The A.M.A. and the Supply of Physicians, 35 LAW & CONTEMP. PROBS. Spring 1970, at 267.
425. The penalty is set at $95 dollars for 2014, $350 for 2015, $695 for 2016, (or no more than 1%, 2%, 2.5% of taxable income in each year, respectively) and cost of living adjusted from that point forward. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501 (2010) (to be codified at I.R.C. § 5000A(c));
426. Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, § 1002 (to be codified at I.R.C. § 5000A(c)). To be a little more precise, some individuals will be exempted from the mandate and others will receive assistance in purchasing health insurance, but I do not discuss the very complex details here. See Patient Protection and Affordable Care Act § 1501.
427. Patient Protection and Affordable Care Act § 1513 (to be codified at I.R.C. § 4980);
428. Healdi Care and Education Reconciliation Act § 1003(b) (to be codified at I.R.C. § 4980). The so-called 'Cadillac insurance tax', the excise tax on insurers of employer-sponsored health plans with aggregate values exceeding $10,200 for individual coverage and $27,500 for family coverage beginning in 2018 (and indexed to the consumer price index thereafter), Patient Protection and Affordable Care Act § 9001 (to be codified at I.R.C. § 49801);
429. Health Care and Education Reconciliation Act § 1401 (to be codified at I.R.C. § 49801), might also have some effect in stimulating interest in insurer-prompted medical tourism, although die effect is far less certain. For one thing, it is unclear how much overlap there is in the community of employers offering employees Cadillac plans and those with employees interested in medical tourism- much would depend on how fast healthcare insurance costs grow, and thus how quickly the threshold for the excise tax begins to apply pressure. Moreover, recent empirical work casts doubt on the common wisdom that high cost of these Cadillac plans are due to particularly rich benefits to plan subscribers, see]on Gabel et al.. Taxing Cadillac Health Plans May Produce Chevy Results, 29 HEALTH AFF., Jan. 2010, at 174, such that medical tourism's reduction in healthcare costs may not make them particularly attractive choices to avoid the excise tax.
430. More robust regulation of insurer-prompted medical tourism may also indirecdy improve the situation of medical tourism by the under/uninsured discussed in Part IV.
431. For example, foreign providers may make lumpy quality-of-care investments, which will benefit all patients, and patients may take heed of which foreign providers insurers use as a signal of quality.
432. FURROW ET AL., supra note 125, at 467,479.
433. Id. at 479-80 (citation omitted). States vary tremendously as to how many mandates they have, with some having as few as six and others as many as thirty-three.
434. Id. at 479-81.
435. Tex. Ins. Code Ann. § 1215.004 (Vemon 2009).
436. Tran, supra note 84, at 364-65.
437. See S3. 1347 (Cal. 2004), available at http://www.leginfo.ca.gov/pub/03- 04/bill/sen/sb-l 301-1350/sb-l 347-bill-20040913-chaptered.pdf.
438. Cal. HEALTH & SAFETY Code §§ 1350, 1352.1 (West 2008);
439. Cortez, supra note 119, at 69-70;
440. Tran, supra note 84, at 365-66;
441. see generally CAL. HEALTH & SAFETY CODE §§ 1340-99.
442. Cortez, supra note 119, at 69 (citing Tran, supra note 84, at 358;
443. Sonya Geis, Passport to Health Can at Lower Cost to Patient: California HMOs Send Some Enrollees to Mexico, WASH. POST, Nov. 6,2005, at A3).
444. 29 U.S.C. § 1144(b)(2)(B) (2006);
445. see, e.g., Allison Overbay & Mark Hall, Insurance Regulation of Providers that Bear Risk, 22 AM. J.L. & MED. 361, 380 (1996). This is a slight simplification, in that the case law interpreting ERISA may require a self-insured firm to be self-insured in particular ways to take advantage of ERISA preemption of state insurance mandates.
446. See Barry Furrow et al., Health Law: Cases, Materials and Problems 657-58 (5th ed. 2004) (discussing ways in which employers can evade regulation requirements).
447. M. Susan Marquis & Stephen H. Long, Recent Trends in Self-Insured Employer Health Plans: A Look at the Interplay Among Market Forces, Regulation, and Employers'Decisions to Self-Insure, 18 HEALTH Aff., May-June 1999, at 161,163 exhibit 1.
448. Kaiser Family found. & Health Res. and Educ. Trust, Employer Health Benefits: 2007 Annual Survey 148 exhibit 10.3 (2007).
449. Cf. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1302 (2010) (to be codified at I.R.C. § 5000A) (empowering the Secretary of Health and Human Services through notice and comment rulemaking to partially define what constitutes an "essential health benefits package" under the new reform legislation).
450. Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1541 (1998).
451. I say "on many views" because the point is not self-evident or uncontroversial. The point holds for authors like Norman Daniels who attach a special importance to health connected to equality of opportunity, Daniels, supra note 224, at 51-78, and believe that individuals can make claims relating to and that governments can properly concern themselves with the health of citizens in a way that they cannot with a more global conception of well-being or welfare-i.e., that I may have a good rights claim against the government to provide me healthcare but not a Magritte painting, even if the Magritte in fact improves my welfare more and costs the same price.
452. See id. at 33-34. On the contrary view, a purer welfarist one, the provision of all goods are fungible into welfare for the purpose of making rights claims-those claims may succeed or not but their currency is always in welfare. For those like Daniels who attach a special importance to health, the fact that a particular intervention might actually jeopardize health outcomes would seem more significant than the fact that it may cause an individual to forego potential cost savings. For the pure welfarists, by contrast, to the extent money is thought of as a currency of well-being, that distinction is harder to maintain. Even for the pure welfarists, though, the other grounds of distinction I offer as to why intervention is more appropriate for insurer-prompted medical tourism hold.
453. To put the point in its strongest terms, some may find it unjust that the lack of universal health insurance forces patients to bear the additional risks associated with medical tourism, but find the case for a ban unappealing because it exacerbates the injustice by making its victims pay for it with their lives. Banning or more thoroughly regulating insurer-prompted medical tourism does not share this same unappealing feature, at least as to this second part of the population.
454. See, e.g., ALAN WERTHEIMER, COERCION 204 (1987) (highlighting differences in benefits between threats and offers).
455. Shahar Lifshitz, Distress Exploitation Contracts in the Shadow of No Duty to Rescue, 86 N.C. L. Rev. 315, 327 (2008) (discussing the difference between threats and offers).
456. WERTHEIMER, supra note 294.
457. It is also worth noting that the distinction between plans TI, TM, and DE may be illusory if the insurer has enough latitude to set the premiums and the amount of incentive or penalty.
458. See WERTHEIMER, supra note 294, at 209.
459. The classic and much fuller account can be found at.
460. id. at 204-21.
461. Id. at 206-07;
462. Lifshitz, supra note 295, at 327-28.
463. WERTHEIMER, supra note 294, at 207-10;
464. Lifshitz, supra note 295, at 327-28.
465. For the classic examples by Charles Fried of the cellist next door and by Robert Nozick of the beaten slave,
466. see CHARLES FRIED, CONTRACT AS PROMISE 10-11 (1981)
467. Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE AND METHOD 440, 450 (Sidney Morgenbesser et al. eds., 1969);
468. see also Lifshitz, supra note 295, at 328 (discussing these examples).
469. The current health reform legislation put into place by the Obama Administration arguably does not change this baseline very much in that it does not purport to create an entitlement to healthcare or health insurance, instead it requires that most Americans purchase health insurance or face a penalty and offers some assistance for low-income individuals who are not covered by Medicaid or Medicare to do so. Moreover, even after its full implementation a substantial number of Americans will remain without coverage. For more details see supra notes 220-23, 276-77 and accompanying text.
470. Many universal healthcare systems, like Britain, tolerate a two-tiered system where those willing and able to pay can buy better healthcare goods; even the Canadian system, among the most egalitarian, has recently begun to open the door for purchasing more private healthcare. Chaoulli v. Quebec [2005] 1 S.C.R. 791, 795 (Can.);
471. see, e.g., Leonard J. Nelson, III, A Tale of Three System: A Comparative Overview of Health Care Reform in England, Canada, and the United States, 37 CUMB. L. REV. 513,522,527 (2006-2007).
472. See infra notes 343-44 and accompanying text (discussing whether to make SQ-type plans be the default option when offering patients a choice).
473. See, e.g., I. Glenn Cohen, supra note 158, at 1161-87 (discussing the problem of precommitment in the context of contracts and bioethics).
474. To be precise, TI plans are not entirely free of precommitment problems in that the individual who subscribes to such a plan as opposed to SQ has precommited themselves to being offered the medical-tourism option at the time of consumption of the service. The analogy is to someone who subscribes to a "dessert of the week club," which offers a discounted high-calorie confection by mail every Thursday, which the individual can purchase or refuse but not avoid being offered. If one decided, months after subscription, to try and lose weight, perhaps the precommitment to be offered dessert every week would cause the individual distress in the form of temptation. That said, this kind of precommitment problem seems far enough afield from the ones that really concern us about TM and DE type plans that I put it to one side.
475. The individual who fails to purchase health insurance at Time 1 may also at Time 2 no longer be able to have his or her illness covered due to pre-existing condition exclusions. The health-reform legislation fixes that problem by mandating guaranteed issue and renewal for adults, but only beginning in 2014 (for children, the changes go into effect September 23, 2010).
476. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1201 (2010) (to be codified at 42 U.S.C. 300gg);
477. see also Peter Grier, Health Care Reform Bill 101: Rules for Preexisting Conditions, CHRISTIAN SCI. MONITOR, Mar. 24, 2010.
478. To be sure, the new health reform's individual mandate somewhat changes this baseline, but it still leaves open to die individual the possibility of remaining uncovered by paying the penalty for not having insurance, it excludes a portion of the population from the mandate requirement, and continues to leave open as discretion as to plan choice (constrained by the mandates minimum benefit requirements). For more details see supra notes 220-223, 276-277 and accompanying text.
479. See Clark C. Havighurst & Barak D. Richman, Distributive Injusticefs) in American Health Care, Law & CONTEMP. Probs., Autumn 2006, at 7, 80 ("It would be seriously destructive of insurance markets, after all, if consumers knew too well what their future health needs would be.");
480. Russell Korobkin, Determining Health Care Rights from Behind a Veil of Ignorance, 1998 U. ILL. L. REV. 801, 826 ("If individuals operating behind the veil of ignorance would desire health insurance, they have no moral claim to change their mind once they learn diat good fortune has rendered them healthy.").
481. Bradley Herring, Suboptimal Provision of Preventive Healthcare Due to Expected Enrollee Turnover Among Private Insurers, 19 HEALTH ECON. 438, 442 (2010);
482. see also Randall Cebul et al., Employer-Based Insurance Markets and Investments in Health 18-24 (2007) (unpublished manuscript, available at http://www.iza.org/conference-files/TAM2007/rebitzer-j439.pdf) (estimating, using different measures, that 21% of those who held health insurance in a given year had cancelled the policy within twelve months, with 87% of that population having acquired a new private policy as opposed to becoming uninsured). It is possible that those who have experienced medical injury switch insurers less than the general population, somewhat mitigating the situation here; I am unaware of empirical research on the issue.
483. Cebul et al., supra note 311, at 26;
484. Herring, supra note 311, at 447.
485. Agrawal & Hall, supra note 130, at 245-49.
486. Schneider & Hall, supra note 176, at 36-59;
487. see also Mark Schlesinger & Brian Elbel, Bounded Rationality and the Conceptual Underpinnings of Health Policy 18-19, 34 (2008) (unpublished manuscript, on file with author) (discussing framing effects and their relationship to health-related decisions).
488. Schneider & Hall, supra note 176, at 43-44 (citing Deborah W. Gamick et al., How Well Do Americans Understand Their Health Coverage, 12 HEALTH AFF., Fall 1993, at 204, 206-09). Perhaps unsurprisingly, Manhattanites performed better. Id.
489. General in personam jurisdiction still seems very unlikely, but there is a more plausible argument that these contacts "arise out of or are connected with the activities within the state" in such a way that will favorably support specific in personam personal jurisdiction. Int'l Shoe Co. v. Washington, 326 U.S. 310,319 (1945).
490. Elizabeth A. Pendo, The Health Care Choice Act: The Individual Insurance Market and the Politics of "Choice," 29 W. NEW ENG. L. Rev. 473, 474 (2007) (citing U.S. CENSUS BUREAU, Historical Health Insurance Tables, Table HI-1: Health Insurance Coverage Status and Type of Coverage by Sex, Race and Hispanic Origin: 1987 to 2005, available at http://www.census.gov/hhes/www/ hlthins/data/historical/orghihisttl.html);
491. see also THE Henry J. Kaiser Family found., Health Insurance Coverage in America 2007, available at http://facts.kff.org/chartbook.aspx?cb=55 (discussing a more recent study of the entire non-elderly population finding that 61% had employer-sponsored health insurance compared to 6% in the individual market).
492. I.R.C. §§106(a), 162(a)(l), 3101(a)-(b), 3111(a)-(b), 3121(a)(2) (2006);
493. see, e.g., Richard L. Kaplan, Who's Afraid of Personal Responsibility ? Health Savings Accounts and the Future of American Health Care, 36 McGEORGE L. Rev. 535,541-44 (2005).
494. Kaplan, supra note 318, at 542.
495. Herring, supra note 311, at 443 tbl.l.
496. For example, if some of the population of employees is close to retirement or the negative impact of poor care manifests only after some time, or both, the employers' incentive to choose insurers with high quality providers will be diminished. Moreover, we would need to say something about the relative size of the cost savings for employers on their share of employee health insurance versus the costs of diminished productivity for the employer-if the former is large and the latter is small the incentive is diminished.
497. Patricia M. Danzon, Tort Liability: A Minefield for Managed Care?, 26 J. LEGAL STUD. 491, 493-94(1997).
498. Here again, we might push on the question of whether government's proper role in regulating health insurance is protecting employee health or employee welfare (in a global sense). The fact that an individual is willing to accept a particular employer with a particular health plan over another gives us at most an indication that he has made the choice that maximizes his welfare, not that he has made die choice that best protects his healdi. On the healdi-is-special view discussed above, supra note 292, it is die latter diat should concern us.
499. In states with "pay or play" legislation, employers who fail to provide coverage must pay a "fine" to the state government to offset die increased costs the state faces due to the employee's lack of coverage;
500. for example, in Massachusetts they would pay up to $295 per employee per year. Elizabedi A. Weeks, Loopholes: Opportunity, Responsibility, or Liability?, 35J.L. Med. & Ethics 320,323 (2007).
501. The health-reform legislation diat has just passed changes this baseline somewhat (again only starting in 2014) by (to simplify for our purposes) making die employer who does not offer insurance "pay" $2000 (inflation adjusted going forward) per employee not counting die first diirty employees, but only as to employers with more dian fifty employees (where "1 or more full-time employees of the applicable large employer has been certified to die employer under secdon 1411 of die Patient Protecdon and Affordable Care Act as having enrolled for such month in a qualified healdi plan with respect to which an applicable premium tax credit or cost-sharing reduction is allowed or paid with respect to die employee," among odier requirements). Patient Protecdon and Affordable Care Actt, Pub. L. No. 111-148, § 1513 (2010) (to be codified at I.R.C. § 4980H);
502. Healdi Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, § 1003 (to be codified at I.R.C. § 4980H). It is because it only applies to some employers, and because employers retain die opdon to "pay" radier dian "play," diat I suggest die reform only cuts into and does not eliminate employer discretion as to whedier to offer a plan and of what type.
503. This is not true for self-insured firms who escape the regulation through ERISA preemption. This is likely the reason that much of the insurer-prompted medical tourism we have seen thus far has occurred in self-insured firms.
504. FURROW ETAL., supra note 125, at 501-03.
505. 42 U.S.C. §§ 300e (b) (4), (c) (6) (2006).
506. FURROW ETAL., supra note 125, at 502 (citing Model Health Maintenance Organization Act § 3A (Nat'l Ass'n Ins. Comm'rs 1990)).
507. Id. at 506.
508. Id. (citing MASS. GEN. LAWS ANN. ch. 1761, § 4).
509. Id. at 507.
510. Id. at 506;
511. Elizabeth Rolph et al.( The Regulation of Preferred Provider Arrangements, HEALTH AFF., Fall 1987, at 32,40.
512. 42 U.S.C. §§ 300e (b) (4), (c) (6) (2006).
513. Id.
514. Rolph et al., supra note 333, at 41.
515. That said, I remain skeptical that the volume of care delivered this way is likely to have much dynamic effect.
516. Whether to mandate an exception for cases where the patient can travel but it is inconvenient for the patient to do so, for example, because of child or elder care, is a harder question. Administering a form of insurance regulation that also requires this kind of exception might be too hard or costly to administer as compared to medical exemptions given the difficulty of setting a standard and detecting those who are faking their need. But, perhaps insurance companies could administer such a rule more easily dian I anticipate.
517. See Cortez, supra note31,atl22.
518. 45 C.F.R. §46.107(2009).
519. California has implemented a requirement along these lines as to insurers located in Mexico that seek to cover the California market, requiring them to subject themselves to personal jurisdiction in California. CAL. HEALTH & SAFETY CODE §§ 1350, 1351.2 (West 2008);
520. Tran, supra note 84, at 365-66. My proposal is instead aimed at getting the provider to subject itself to personal jurisdiction, and otherwise make itself amenable to suit in the United States.
521. We could instead require the healdi insurer to itself become an insurer against patient med-mal, see Cortez, supra note 31, at 122, but this might risk more conflicts of interest in die processing and paying of claims.
522. Aldiough I do not diink it politically feasible, as discussed above, supra note 211, state or federal governments could instead set up a victim-compensation fund, which in the case of insurer-prompted medical tourism, could be funded by per-patient levies on insurers that use medical tourism.
523. It is worth noting that the claim may also not be entirely true. A quite different concern with insurer-prompted medical tourism is that it may facilitate insurer cream-skimming if we believe that individuals who know they are of lower health risk will opt for plans with some amount of medical tourism incentivized or mandated. If so, premiums for SQ plans will increase as more of its left-over subscribers are high risk. How plausible a concern this represents, and how to normatively evaluate this result is complex, and would depend in part on how much of a solidarity function we think health insurance should play.
524. See generally Hoffman, supra note 219. This may represent a separate justification for some attempt to limit insurer-prompted medical tourism, but one I do not fully develop here.
525. Eric Johnson et al., Framing, Probability Distortions, and Insurance Decisions, 7 J. RISK & UNCERTAINTY 35, 39-40 (1993).
526. Recall that the question is what model the plan adopts for a particular service. Thus it could cover all care except heart-valve replacement domestically, and as to diat surgery it could either mandate treatment abroad, incentivize it, or penalize (but cover) die surgery domestically.
527. The Texas statute prohibits a "plan diat requires an enrollee to" engage in medical tourism, TEX. Ins. Code Ann. § 121.004 (Vernon 2009), but does not define "requires"; the most natural reading to me is that it prohibits only TM-type plans, not DE- or Tl-type plans, but that interpretation has yet to be tested. The legislative history suggests the prohibition was also meant to apply to plans that offer "discount on the amount an enrollee is required to pay to receive a particular health care service under the plan" if the enrollee opts for medical tourism. Texas Bill Analysis, S.B. 1391, (Apr. 11, 2007), 80th Leg., Reg. Sess., (Tex. 2007), available at http://www.legis.state.tx.us/tlodocs/76R/analysb/html/SB01391F.htm.
528. See, e.g., Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. Legal Stud. 199, 205-06 (2006);
529. Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263 (1979).
530. Johnson et al., supra note 345, at 43-44.
531. Agrawal & Hall, supra note 130, at 268;
532. Jennifer Arlen & W. Bentley MacLeod, Malpractice Liability for Physicians and Managed Care Organizations, 78 N.Y.U. L. REV. 1929, 1987-97 (2003);
533. Clark C. Havighurst, Vicarious Liability: Relocating Responsibility for the Quality of Medical Can, 26 Am. J.L. & MED. 7, 9, 16-20 (2000) (describing enterprise liability as a "default" option for patients);
534. Sage, supra note 91, at 160-69, 194. Sage's work was written in the context of proposed Clinton-era healthcare reform and its application in the post-managed-care backlash era domestically, let alone to medical tourism, is not obvious. Arlen and MacLeod's position differs from other commentators in that they argue against "predicating MCO liability on control (as under traditional vicarious liability)" because "it may discourage MCOs from exercising welfare-enhancing controls to reduce medical error" and instead suggest MCOs should face liability "if the MCO had the capacity to affect its physicians' behavior by sanctioning negligent physicians, regardless of whether the MCO actually exercises direct control over physician behavior." Arlen & MacLeod, supra, at 1988. While it seems plausible that insurers have more power to sanction than to control foreign providers in medical tourism, their ability to sanction here also seems markedly weaker than in the domestic realm.
535. Agrawal & Hall, supra note 130, at 268;
536. Danzon, supra note 322;
537. Richard A. Epstein, Vicarious Liability of Health Plans for Medical Injuries, 34 VAL. U. L. REV. 581, 590-94 (2000).
538. Agrawal & Hall, supra note 130, at 269.
539. FURROWETAL., supra note 125, at 404-05.
540. See supra text accompanying notes 121-29 (discussing such restructuring attempts).
541. Requiring them to cover healthcare expenditures from medical tourism simplicity might be desirable in theory, but my own sense is that this would require too much of a divergence from existing insurance practice where coverage is tied to the time services are needed, not the time when the disease first manifested, to be justified.