Who can be held responsible for medical malpractice in the realm of medical tourism?

Jolanta Budzowska        12 October 2018        Comments (0)

In recent years, Poland has become one of the most popular tourism destinations among tourists from Great Britain, Germany, Sweden and Norway who look for highly specialised medical services during their travel. Medical services may qualify as travel services supplied to a traveller within the meaning of the Act on Package Travel – Polish national provision transposing the Directive 2015/2302 . This raises a question of distribution of liability for the quality of medical services provided by healthcare entities. Who can be held responsible for medical malpractice when the medical service is provided within the framework of a package travel or when it has been purchased by a patient as a linked travel arrangement?

Healthcare entity as as a tourism entrepreneur

In practise, the tourism organiser or the entrepreneur who assists in the purchase of linked travel arrangements is the entity operating strictly in the tourism industry. However, there may be circumstances where the healthcare entity has the status of a tourism entrepreneur. This entails far-reaching responsibilities and liability for medical negligence.

The prime responsibility of a healthcare entity who is a provider of travel services in the form of a healthcare service is certainly to comply with all rules on providing the healthcare service duly, consistently with current medical knowledge and professional ethics – under existing legislation including in particular: the Act on Patient’s Rights, the Act on Professions of a Physician and Dentist and the Act on the Healthcare Institutions. The traveller – regardless of whether he is a Polish citizen or a foreigner – can exercise all patient’s rights as set out in the Act on Patient’s Rights: i.a. the right to healthcare services consistent with current medical knowledge (Article 6 (1) of the Act on Patient’s Rights), the right to healthcare services provided with due diligence by entities providing healthcare services under conditions that meet professional and sanitary requirements specified in separate provisions (first sentence of Article 8 of the Act on Patient’s Rights), the right to healthcare services provided by healthcare professionals who follow the principles of professional ethics specified by relevant healthcare professional’s organisations (second sentence of Article 8 of the Act on Patient’s Rights) and the right to information on own health status (Article 9 (1) of the Act on Patient’s Rights).

When it comes to package travels in relation to medical tourism, in addition to the usually encountered inconsistencies (issued with accommodation, transportation, etc.), the primary risk of medical tourism is the risk of bodily injury or disorder of health due to negligence or the so-called medical error in providing the traveller with healthcare services – which in turn may lead to material and non-material damage (harm) of the traveller.

 
 

Treatment as a linked travel arrangement

Moving on to the considerations on the scope of liability of tourism entrepreneurs in relation to medical tourism, it must be pointed out that when applying the model of linked travel arrangements, each of the tourism entrepreneurs is responsible for his own actions and omissions. Therefore, in case an inconsistency occurs during the provision of a healthcare service, the entity liable to the traveller would be the healthcare entity – within the framework of fault-based tortious liability. This means that it is the traveller who would bear the burden of proving the existence of circumstances warranting the liability: the healthcare entity’s wilful act or omission, the scope (amount) of the traveller’s damage as well as the causal link between the act/omission and the damage. However, the situation may be different if the healthcare service is part of a package travel.

Treatment as part of package travel

The tourism organiser is liable for performing tourism services covered by an agreement on package travel, regardless of whether such services are performed by the tourism organiser or other tourism services providers. This provision establishes the organiser’s contractual, strict liability. The tourism organiser cannot discharge himself of liability by indicating that he entrusted a professional with the performance of a particular service. Therefore, the traveller is entitled to claim full material and non-material compensation against the tourism organiser, who is strictly liable. This confirms a very vast scope of liability of the tourism organiser toward the injured patient in the medical tourism sector, if the healthcare service is part of the medical travel package.

We have recently discussed the legal aspects of liability for medical negligence in the realm of medical tourism, medical tourism in general as well as the patient’s claims with dr Jan Paradowski – an orthopaedist and a surgeon and the Polish Football Association’s physician – and Anna Białk-Wolf – the co-founder and President of the Institute of Research and Development of Medical Tourism – during a live broadcast in Radio Kraków

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