Patients with passports : medical tourism, law and ethics / I. Glenn Cohen.
2015
K3607 .C64 2015 (Map It)
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Details
Author
Title
Patients with passports : medical tourism, law and ethics / I. Glenn Cohen.
Published
New York : Oxford University Press, [2015]
Copyright
©2015
Call Number
K3607 .C64 2015
ISBN
9780199975099 ((hardback) : alk. paper)
0199975094 ((hardback) : alk. paper)
9780190218188 (pbk. : alk. paper)
0190218185 (pbk. : alk. paper)
0199975094 ((hardback) : alk. paper)
9780190218188 (pbk. : alk. paper)
0190218185 (pbk. : alk. paper)
Description
xxvi, 498 pages : illustrations ; 24 cm
System Control No.
(OCoLC)875404153
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Silver Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Silver Fund
Table of Contents
Preface
xv
I.
The Voices of Medical Tourists
xvi
A.
Carl
xvi
B.
Joy and Gary
xvi
C.
Mr. Steeles
xviii
D.
Akash
xix
E.
Daniel James
xx
F.
Samuel Ghilain
xxi
G.
C and His Parents
xxii
II.
Acknowledgments
xxiii
1.
An Introduction to the Medical Tourism Industry
1
I.
Kinds of Medical Tourism
2
A.
Dividing the Industry by Legal Status of Treatment
2
B.
Dividing the Industry by Payer Type
2
i.
Patients Paying Out-of-Pocket
2
ii.
Patients Whose Medical Tourism Is Covered by Private Insurers
8
iii.
Patients Whose Medical Tourism Is Covered by Public Insurers (Home Country Governments)
9
C.
Dividing by Direction of Patient Flow
10
II.
Understanding How the Industry Works and Its Major Players
16
A.
Destination Country Governments
16
B.
Destination Country Hospitals and Their Staff
19
C.
Accreditors
23
D.
Facilitators
24
E.
Insurers
28
F.
Home Country Partners
28
G.
Industry Associations 33
Part One Medical Tourism For Services Legal In The Patient's Home Country
39
2.
Quality and Information
41
I.
What Is Known about the Quality of Foreign Facilities and Providers and the Risks Faced by Medical Tourists?
42
A.
Risks due to Complications from Improperly Performed Procedures
44
B.
Disease Transmission (Especially Antibiotic-Resistant Bacteria)
48
C.
Continuity of Medical Documentation and Difficulties in Providing Follow-Up Care
56
II.
What Might Be Done to Ensure That Patients Are Protected?
57
A.
Why Providing Information Is Desirable but Insufficient
59
i.
What Information Is Currently Available?
59
ii.
What Kind of Information Would We Want to Have Available for Patients to Make Rational Choices and How Would We Induce Disclosure?
61
iii.
Problems with Information Disclosure
63
B.
Interventions That Restrict Patient Choice
66
i.
Three Important Considerations
66
ii.
Mechanisms for Restricting Patient Choice
69
C.
Channeling
71
i.
Forms of Channeling
73
1.
Channeling by Service
73
2.
Channeling by Experience
74
3.
Channeling by Accreditation or Other Signal of Quality
75
4.
Channeling by Outcome and Infection Data
75
III.
Conclusion
76
3.
Legal Liability
79
I.
Medical-Malpractice Liability for Injuries Sustained during Treatment 8o
A.
Why Care about Medical-Malpractice Liability
81
B.
Why Patients Face a Lower Likelihood and Amount of Recovery for Injuries Sustained as Part of Medical Tourism Compared to Health Care Provided at Home
83
i.
U.S. Patients Traveling Abroad for Care
83
1.
Personal Jurisdiction
83
2.
Forum Non Conveniens
85
3.
Choice of Law, the Enforcement of Judgments, and Suing Abroad
86
ii.
Patients from Home Countries outside the United States
89
iii.
Liability for Facilitators
92
C.
Should It Matter?
95
i.
Thinking about Baselines and Counterfactuals
95
D.
Should Patients Be Permitted to Choose Deficient Med-Mal Recovery through Medical Tourism?
99
E.
Softer Regulatory Interventions Focused on Channeling?
108
F.
More Radical (but Less Likely) Interventions: Strict Liability for Facilitators and Victim's Compensation Funds
116
II.
Home-Country Physician Liability: Referral Liability, Abandonment Liability, and Liability for Follow-Up Care
119
A.
Liability for Actions or Omissions of Home-Country Physicians before the Patient Travels: Referral Liability
120
B.
Liability for Follow-Up Care and/or Abandonment
121
C.
Referral Fees
128
III.
Conclusion
133
4.
Medical Tourism through Private Health Insurance
135
I.
The Private Health Insurance Medical Tourism Industry: Where It Is and Where It Is Going
137
A.
A Taxonomy of Potential Plan Types
139
B.
Existing Insurance Regulation Governing Medical Tourism
141
C.
A Tale of Two Regulatory Approaches: California and Texas
144
D.
Will the Affordable Care Act Change Things?
146
II.
Quality and Liability Revisited
151
A.
How Is Medical Tourism through Private Health Insurance Different?
151
B.
What Should Be Done?
158
III.
Regulating Plan Design
161
IV.
Conclusion
166
5.
Medical Tourism through Public Health Insurance: The EU Model and Beyond
169
I.
A Brief Primer on Cross-Border Health Care in the European Union
170
A.
The EU System
170
B.
EU Health Care Systems
171
II.
EU Medical Tourism before 2011
173
A.
Treaty Provisions and Secondary Legislation Relevant to Medical Tourism
173
B.
Emergency Care during a Temporary Visit to Another Member State
175
C.
Scheduled Care in Another Member State
177
III.
The Post-2011 Landscape: The New EU Directive
186
A.
Prior Authorization
187
B.
Reimbursement
191
C.
New Rights for Patients
194
D.
Cooperation
195
E.
Assessing the Directive
196
IV.
The Possibility of Publicly Financed Medical Tourism in the United States (and Elsewhere)
198
V.
Medical Retirement
201
VI.
Conclusion
204
6.
Medical Tourism's Effects on the Destination Country: An Empirical and Ethical Examination
207
I.
The Empirical Question: What Effect Does Medical Tourism Have on Health Care Access in the Destination Country?
210
A.
Framing the Right Empirical Question
210
B.
Six Ways in Which Medical Tourism May Affect Health Care Access in the Destination Country: An Evaluation of the Existing Evidence
212
II.
What Duties Are Owed by Home Countries and Other International Institutions?
217
A.
Obligations of Home Countries and Intergovernmental Bodies
227
i.
Self-Interest
227
ii.
Cosmopolitan Theories (and Their Statist Critics)
229
1.
Cosmopolitanism in Global Justice
229
2.
Statist Theories
233
B.
Intermediate Theories (with a Focus on Causation)
237
i.
Cohen, Sabel, and Daniels
237
ii.
Pogge
244
C.
From Global Justice Theory to Real World Regulation
249
III.
Obligations of Destination Country Governments, Medical Tourists, and Others
251
A.
Destination Countries
253
i.
Moral Obligations
253
ii.
Regulatory Interventions
255
B.
Individual Medical Tourists
256
IV.
Conclusion
259
Part Two Medical Tourism For Services Illegal In The Patient's Home Country
261
7.
Transplant Tourism
263
I.
Understanding Transplant Tourism Markets: Of Sellers, Recipients, and Brokers
264
A.
The Sellers
265
i.
The Philippines
265
ii.
Pakistan
267
iii.
Bangladesh
269
iv.
India
272
v.
Other Data on Sellers
274
B.
Studies of Recipients
277
i.
UCLA, Los Angeles, California, USA
277
ii.
University of Minnesota Medical Center or Hennepin County Medical Center, Minnesota, USA
278
iii.
St. Michael's Hospital, Toronto, Ontario, Canada
279
iv.
British Columbia, Canada
280
v.
Other Data
280
C.
The Brokers
281
II.
The Bioethical Questions
282
A.
Corruption
283
B.
Crowding Out
286
C.
Coercion, Exploitation, Undue Inducement, and Justified Paternalism
287
i.
Is Transplant Tourism Coercive?
288
ii.
Is Transplant Tourism Exploitative in a Way that Should Prompt Legal Intervention?
291
iii.
Consent, Bounded Rationality, and Justified Paternalism
298
III.
Regulation
304
A.
Destination Country Enforcement
305
B.
Professional Self-Policing and International Documents
305
C.
Home Country Measures
309
D.
Improving the Supply and Allocation of Organs Locally
312
IV.
Conclusion
313
8.
Medical Tourism and Ending Life: Travel for Assisted Suicide and Abortion
315
I.
The History and Current Practice of Traveling Abroad for Abortion and Assisted Suicide
318
A.
Abortion
318
B.
Assisted Suicide
322
II.
Can Home Countries Criminalize the Acts of Their Citizens Seeking Assisted Suicide or Abortion in Destination Countries Where Those Acts Are Legal?
324
A.
Bases for Prescriptive Jurisdiction
315
B.
Limitations on Jurisdiction to Prescribe
328
III.
The Normative Question: Should Home Countries Criminalize Their Citizens' Abortion and Assisting Suicide When Done in Destination Countries Where the Act Is Legal?
331
A.
A Prima Facie Argument for Extraterritorial Criminalization of Abortion and Assisted Suicide
334
i.
A Thought Experiment: Murder Island
334
ii.
A Political Theoretical Account
336
iii.
When Extraterritorial Criminalization Is Inappropriate
343
B.
Travel for Abortion
347
i.
Justifications Other than Harm to the Fetus
347
ii.
Victim Citizenship
348
iii.
Contestability of the Norm, Exit, and Exit-Light
351
iv.
Timing
355
C.
Travel for Assisted Suicide
356
i.
Concerns about Protecting Patients and Consent
357
ii.
Concerns about Changes in Attitudes: Corruption of the Profession, Slippery Slopes, and the Devaluation of Life
359
1.
Extraterritoriality and Corruption Justifications Generally
360
2.
Corruption and Assisted Suicide
363
IV.
Criminalizing Domestic Speech on Abortion and Assisted Suicide
365
V.
Conclusion
370
9.
Medical Tourism and the Creation of Lift: A Study of Fertility Tourism
371
I.
What Is Known about Fertility Tourism?
378
A.
Types of Technology for Which Fertility Tourism Is Sought
378
B.
Data on Fertility Tourism
381
i.
Shenfield et al.'s Study of Europe
381
ii.
Hughes and Dejean's Study of U.S. and Canadian Clinics
384
iii.
Other Data
385
II.
Extraterritorial Criminalization: Should Home Countries Criminalize Circumvention Fertility Tourism?
388
A.
Child Welfare Concerns
391
B.
Corruption
395
C.
Exploitation and Undue Inducement
398
III.
Surrogacy and the Citizenship of Children Born Abroad
403
A.
How Home Countries Have Handled These Cases
403
B.
Regulatory Options
409
IV.
Conclusion
418
10.
Medical Tourism for Experimental Therapies: An In-Depth Exploration of Stem Cell Therapy Tourism
421
I.
The Science of Stem Cell Therapies
425
A.
What Are Stem Cells?
425
B.
What Might Stem Cell Therapies Look Like?
427
C.
Current FDA Regulation of Stem Cell Therapies
428
II.
The Scope of Stem Cell Tourism: Lessons from the Available Data
430
A.
Studies of Clinics
430
i.
Regenberg et al.'s study of Stem Cell Therapy Websites
431
ii.
Lau et al.'s Website Study
434
B.
Studies of Patients
435
i.
A Patient Blog Study
435
ii.
A Study of Thirteen Stem Cell Tourists at Beike Clinics in China
437
iii.
Focus Groups of Potential Patients
441
C.
Adverse Outcome Reports
442
III.
The Legal and Bioethical Issues Raised by Stem Cell Tourism
443
A.
Developing a Responsible Innovation Pathway for Stem Cell Therapies, Self-Regulation, and Channeling
444
i.
Professional Self-Regulation and Its Limits
445
ii.
Criminalizing and Channeling
452
IV.
Stem Cell Tourism with Children as Patients
460
A.
Parents, the State, and the Best Interests of Children in Stem Cell Therapies
461
i.
Existing Canadian and U.S. Law
461
ii.
Where Should the Law Be Going?
467
B.
Doctors' Obligations
470
V.
Conclusion
475
Index
479