Manual Mexico-A Mecca for Medical Tourism (Medical Tourism Worldwide Book 1)

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Unfortunately, the surgeon in India did not properly sterilize his medical instruments and she developed a severe infection. Shortly after returning home, the woman died. Now her husband, saddened by the loss of his wife, seeks to sue the surgeon in a Pennsylvania court. Assume further, three different scenarios that are important to understanding jurisdiction and liability.

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In the first scenario, the woman travelled to India without knowing the name of a surgeon and located one only after she arrived in India. In the second scenario, the woman travelled to India after seeing an advertisement in the Philadelphia Inquirer by a surgeon in India offering inexpensive breast augmentation. Depending on which of the three scenarios took place, the Pennsylvania court may dismiss the lawsuit for lack of jurisdiction. Before discussing the various scenarios, it is important to understand the concept of jurisdiction.

There are two categories of jurisdiction: subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction means the court can hear the type of case. Generally, this is only an issue when parties are arguing over whether federal court or state court is the proper forum. The more commonly disputed category of jurisdiction, however, is personal jurisdiction. Personal jurisdiction means not only can the court hear the type of case, but it has power over the person or entity being sued.

Personal jurisdiction is the issue most commonly raised by medical tourism, as explained below. The concept of personal jurisdiction is integrally related to the well-known concept of due process. Due process, which is the foundation of American law, entitles one to defend oneself before liability or judgment is imposed.

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Thus, as an extreme example, a court in Alaska would not have personal jurisdiction over a Pennsylvania-licensed doctor who is alleged to have committed medical malpractice on a Pennsylvania resident during a surgery taking place in Philadelphia. This is a violation of due process, as the Pennsylvania doctor should not be forced to travel to the other side of the country to defend himself against such serious accusations.

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In fact, people come to Philadelphia from all over the country and different parts of the world to take advantage of its several world-renown health care institutions. Thus, it is not accurate to say that a court has jurisdiction only over the residents of a particular state or only over an event occurring in a particular state. In Pennsylvania, its long-arm statute section of the Judicial Code, 42 Pa. Pappert v. TAP Pharma.


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The intent of this statute is manifest in that it seeks to prevent persons or businesses which market or sell their products or services to Pennsylvania residents, from hiding behind the artificial border of another state if they are sued on account of such products or services. Applying personal jurisdiction to the three factual scenarios, it should be evident that in the first scenario a Pennsylvania court would not exercise personal jurisdiction over the Indian surgeon.

Background

In that scenario, the woman unilaterally chose to travel to India without any provocation by the surgeon. As such, he had no contacts with the Commonwealth of Pennsylvania which would satisfy the long-arm statute and to hail him to a foreign country to stand trial would certainly offend due process.


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Likewise, in the third scenario, a United States-based match maker service which targeted Pennsylvania residents to participate in medical tourism in India and arrange such trips would satisfy the long-arm statute. However, in both the second and third scenarios, although personal jurisdiction may exist, it does not necessarily follow that liability may be imposed. As if the difficulty and uncertainty associated with suing a negligent foreign doctor were not enough to deter the concept of medical tourism, there is the related issue of being able to impose liability on any such doctor over whom a court may find that it has personal jurisdiction.