Penningtons' travel law team was recently asked to comment on the legal issues arising from a case involving a British holidaymaker who tragically died as a consequence of complications following cosmetic surgery abroad.

So-called 'medical tourism' is on the increase. For many consumers, the question of whether to go abroad for privately-funded, non-essential surgery is essentially one of cost versus risk. The cost benefits are clear, with such surgery often being significantly cheaper abroad than it is in the UK. At the same time, when things go wrong, there are potentially significant risks for consumers, insurers and the success of legal proceedings.

Informed consent

The first, and perhaps most obvious, risk of surgery abroad is that where language is an issue, a client may not fully understand the nature of the procedure and the aftercare arrangements.

Regulation and clinical negligence

Clinics in foreign countries may not be subject to a stringent regulatory regime, increasing the potential risk of undergoing any medical procedure. Simultaneously, without a robust regulatory regime, it may be difficult to establish an expected standard of care below which the treating practitioner or clinic has fallen.

Related to this is that there are a number of countries where the concept of clinical negligence is either not legally recognised or where standards of what is recognised as negligence or malpractice may vary substantially.

Disclaimers, jurisdictional issues and insurance

Having surgery abroad may mean that any legal dispute relating to that surgery must be settled in the country where the surgery has taken place. However, if successful, levels of damages awarded to the claimant would be subject to that jurisdiction.

Consumers should be aware that many insurance policies do not cover an individual for clinical negligence claims.

The Medical Protection Society has reported that in many cases, foreign clinics and practitioners do not have appropriate insurance to cover certain procedures or patients who are not resident in that country.

Some clinics have included disclaimers in their paperwork by which the consumer effectively signs away their rights to sue at all.

Bringing a claim in the UK

If the surgery is paid for using a credit card, it is always worth looking at whether the claim could be brought in the UK against the consumer's credit card company, under s75 of the Consumer Credit Act 1974.