Well-Being Travel Conference 2012
Should travel agents be worried about liability and other legal risks associated with medical travel?
Not if they take the proper steps to protect themselves against legal claims that could arise from an experience gone wrong, said travel industry attorney Mark Pestronk.
Pestronk will present a seminar on the legal aspects of medical travel at the Well Being and Medical Travel Conference, June 20-21 at the Phoenician in Scottsdale, Ariz. Pestronk spoke with Travel Market Report about the risks involved with medical travel and how agents can protect themselves.
Beyond U.S. jurisdiction
Concerns over risks stemming from medical travel are not unwarranted, Pestronk noted. “The reason, above all, is that the people and entities that might be negligent or commit malpractice are – unlike tour operators and cruise lines that advertise in the U.S. – beyond the jurisdiction of U.S. courts,” he said.
Because of the difficulty of suing an overseas medical facility, a personal injury lawyer might view the travel agency involved as an easier target, he explained.
“The personal injury lawyer will rapidly find out that it’s futile to sue in a foreign country – there may be no malpractice laws there, damage recovery is limited, and it may take forever for the case to be tried,” Pestronk said.
“So the lawyer is going to look for someone to sue, possibly the travel agent. It’s not that the agency was negligent; it’s more that there is no one else to sue.”
Even though the travel agency may not be liable, it can still cost the agency “tens of thousands of dollars” to fight the suit, Pestronk said.
Disclaimer and release
To avoid such legal action, agents should require medical travel clients to sign a disclaimer and a release, Pestronk said. Examples of each will be presented during his seminar at the Well-Being and Medical Travel Conference.
“The disclaimer should be the same as you use for other travel arrangement – that you’re not responsible for the actions of third parties,” he said.
“The release should say that the client understands the risks of medical procedures; that the agency is not recommending any specific doctor, procedure or hospital, and that the agency is released from responsibility.”
Work with a medical travel facilitator
Pestronk also advised that travel agents work with medical travel facilitators for the medical aspects of the trip. The facilitator should also be knowledgeable about the travel suppliers in the destination.
“Just because a facility says it is suitable for handicapped travelers, that doesn’t make it so. You need to work with a middle man who really knows the suppliers.”
Agreement to indemnify the agent
Pestronk further recommends that the medical travel facilitator agree to indemnify the travel agent and travel agency against all claims.
“The contract should say that they will indemnify and protect you – that they will defend you in case there is a suit.”
Offer medical travel insurance
Agents should also offer clients a medical travel insurance policy that covers malpractice injuries and emergency evacuation back to the U.S., Pestronk said.
“If the client declines the policy, then get it in writing that the policy was offered and declined. This will deter a lot of suits. Clients are far less likely to sue if they were offered insurance and didn’t take it.”
Along with recommending medical travel insurance, agents should offer clients regular travel insurance as well, Pestronk advised.
Risks are overblown
On a personal note, Pestronk said he thinks agents have reason to be confident that the standards of medical care overseas are “generally of high quality.”
“During a recent trip to Mexico, my wife had an ankle injury. We were impressed by the level of treatment in the hospital there,” he said. “This is not a legal opinion, but I personally think that risks of medical tourism are probably overblown.”
Conference features detailed legal advice
Pestronk will provide agents with additional resources and detailed practical guidance from a legal perspective at the Well-Being and Medical Travel Conference, June 20-21. at the Phoenician resort in Scottsdale, Ariz.
Co-sponsored by Travel Market Report and Well-Being Travel, the conference will provide in-depth education for agents about all aspects of selling to and servicing medical travelers, including how to tap the market.
Registration for agents is $199. For information, visit well-beingtravelconference.com.