Medical Tourism Vendors and Legal Jurisdiction

Abstract

When patients make cross-border purchases of medical services, they rarely contemplate jurisdiction. When patients experience an adverse outcome at the hands of an overseas medical tourism vendor (MTV) (i.e., a provider or a facilitator), jurisdiction is a key issue that determines whether the patient will receive any compensation.

In the European Union (EU), jurisdiction over medical tourism purchases is determined by the Brussels Convention (BC). Under the BC, jurisdiction is not an issue when a patient and a MTV are domiciled in the same country. If a MTV and a medical tourist are domiciled in different EU member states, then jurisdiction over disputes between these parties belongs to the courts where the MTV is domiciled. The BC’s general rules for determining diversity jurisdiction are subject to modification by (1) a MTV’s willingness to make a voluntary appearance in a court where the medical tourist is domiciled, (2) the locus of the contract’s performance, (3) the presence of an arbitration or jurisdiction (forum-shifting) clause within the contract for services, and (4) a patient’s ability to demonstrate that they are a consumer.

As a general principle of defense strategy, retaining the “home jurisdiction” advantage is desirable. MTVs who wish to retain their home jurisdiction advantage will want to artfully draft their professional services contracts so that all of clauses are valid and develop their advertising campaigns with care so as to prevent medical tourists from being deemed to be consumers.