The Medical tourism industry has been growing worldwide. Costa Rica has become a very popular destination for medical tourism given the proximity to the United States. The proximity and the high cost of medical care and insurance in the United States has forced patients to look at alternatives. For that reason the offshoring of medical care to Costa Rica will continue to grow.
However, since all medical procedures have an element of risk the prospective medical tourist should also be aware of the legal issues involved when they seek medical care abroad.
In the United States there is an entire industry around the medical malpractice field. From insurance companies that insure health care providers to a specialized legal industry that focuses on malpractice.
In the United States there are close to 225,000 deaths per year due to medical negligence of some sort. According to the Journal of the American Medical Association (JAMA) the following are some of the statistics:
106,000 patients die each year from the negative effects of medication
80,000 patients die each year due to complications from infections incurred in hospitals
20,000 deaths per year occur from other hospital errors
12,000 people die every year as a result of unnecessary surgery
7,000 medical malpractice deaths per year are attributed to medication errors in hospitals
When you decide to obtain medical care in another country you may not be able to sue your medical provider in your home country unless you are able to establish personal jurisdiction over that provider. As such, you may have to deal with the foreign legal system of the country where the medical procedure was done.
In the United States medical malpractice is generally a civil court process where the victim must establish four elements in order to be successful:
1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. A duty was breached: the provider failed to conform to the relevant standard care.
3. The breach caused an injury: The breach of duty was a proximate cause of the injury.
4. Damage occurred.
In Costa Rica, many will be surprised to learn that medical malpractice claims area mixture of civil law and criminal law.Most cases are pursued as criminal proceedings.
The criminal code establishes the crime of Homicidio Culposo (art. 117)when the act results in the death of the patient or Lesiones Culposas (art. 128) when the act results in the injury of the patient.
The Costa Rican courts have defined medical mal practice as “an involuntary error, defect or failure to apply the methods, techniques or procedures customarily used by the medical profession and which in turn affects the health or life of the patient.”
In order to prove malpractice in Costa Rica it is necessary to establish the following elements.
1. The fault or omission (either voluntary or involuntary) which produced the death or injury and which was foreseeable and avoidable in the standard duty of care of the medical profession.
2. The act resulted in damage to the patient.
3. That the proximate cause be a direct consequence of the fault or omission committed by the health care provider.
Medical malpractice lawsuits in Costa Rica are not very common and can be difficult to prove. It also takes many years for the legal process to wind itself through the judicial system. Also, the amount of money that would be awarded for damages by the courts in Costa Rica is often far less then would exist for comparable damages in the United States.