Suing an Indian hospital for medical negligence could take 20 years

Americans going overseas for medical treatment will find it long and difficult, if not impossible, to sue for medical negligence either in the US or the country they were treated in, said Nathan Cortez, Associate Professor of Law, Southern Methodist University Dedman School of Law, in a recent presentation at North Carolina Journal of International Law and Commercial Regulation Symposium.

Americans going overseas for medical treatment will find it long and difficult, if not impossible, to sue for medical negligence either in the US or the country they were treated in, said Nathan Cortez, Associate Professor of Law, Southern Methodist University Dedman School of Law, in a recent presentation at North Carolina Journal of International Law and Commercial Regulation Symposium.

Professor Cortez says that American patients opting to leave the United States to have procedures done overseas may not realize that they may be forgoing the legal protections of American courts. Patients are bearing the brunt of legal risks because it can be very difficult to successfully sue in the US or overseas.

In the USA, jurisdictional issues and deciding under which theory of liability to sue are difficult obstacles to overcome when dealing with a foreign doctor and foreign hospital. Professor Cortez focused on the legal system in India to showcase the challenges patients face even if they are willing to sue overseas. Typical delays in India’s civil courts can go on for fifteen to twenty years, and while patients can elect to pursue claims through consumer forums known as Consumer Dispute Redressal Agencies, there can still be delays averaging two to three years as well as difficulties with securing expert testimony and accessing medical records. And, overly complex cases may even be transferred back to the civil courts, and in the end, a successful patient can expect only very limited compensation.

As Professor Cortez points out in his article, Recalibrating the Legal Risks of Cross-Border Health Care, medical tourism raises questions about whether patients fully understand the tradeoff they are making when they seek medical care abroad. With such limited remedies available to patients, are these risks potentially exacerbated by a lower quality of care and a higher likelihood of medical mistakes?