The globalization of health service has been to facilitate advancement in information and communication technology, liberalization of foreign investment, greater international mobility of patients and also demographic dynamics. As a result, health services are in the realm of multilateral trade negotiations under the World Trade Organization (WTO). According to Investment Commission of India, the healthcare industry has brought about remarkable evolution of an added 12 per cent per year during the previous four years, motivated by a number of factors like, increase in life expectancy, rise in income levels and awareness of health insurance amongst the people. And, as international business and legal practices adjusted with the two former global revolutions, so too must we develop flexible frameworks to accommodate the ambiguous and ever-changing nature of the health services industry.
There are several potential liable parties in a medical tourism claim: foreign health care providers, intermediaries, employers, and insurers. Although procedural legal barriers hinder pursuit of a foreign health care provider defendant, the difficulty of finding and proving theories of liability impede pursuit of the remaining potential defendants. Finally, another category of potential barriers worth noting in determining potentially liable parties are charitable and government immunity for healthcare institutions.
If a plaintiff chooses his residence state, he faces the challenge of establishing personal jurisdiction, defending forum non conveniens motions, and implementing any favorable judgments in a foreign court. It is not likely the case if a suit is brought in defendant‘s domicile, as issues regarding place of injury and whether it is in the chosen forum‘s interest are well established. The major drawbacks to such option, however, are similar to the challenges of defending a cross-border tele-medicine claim in a foreign court.
Even after jurisdiction is established, parties to dispute must deal with additional challenge of choice of law determinations. Depending on laws of the countries concerned, a court’s selection may be essential in deciding the outcome and remedies available. As discussed earlier, each court adopts a diverse approach to determining choice of law.
In addition to determining which parties are liable, the injured party also has the challenge of selecting the suitable forum that will litigate and enforce the claim. The selected court must have jurisdiction over the same, as jurisdiction grants the court authority to prescribe, adjudicate, and enforce judgment against persons and property.
Firstly, not only do common and civil law countries have diverse approaches to assert personal jurisdiction, but countries from each legal system may make different determinations from their counter-parts because of their own individual interpretation of laws in question. In civil law countries, a defendant may be sued in his domicile and in any jurisdiction where he commits a tort. Additionally, some civil law countries have enacted legislation broadening their reach of personal jurisdiction.Contrasting the civil law reliance on territoriality, the common law system considers the principles of fairness and reasonableness by examining the quantity and quality of contacts among the defendant and the forum state. Furthermore, it is important to consider the existence of any commercial or civil agreements that a country is a party to, as such membership may affect its rules regarding jurisdiction qua the fellow member states.
Arbitration, being closely inter-connected in promoting and protecting people’s rights, empowering them and thus improving their health, it could be said that resolution of disputes by way of Arbitration is also a fundamental Human Right. In a welfare State, it is the responsibility of the State to ensure the creation and sustaining conditions congenial to good health. In my view, Arbitration would definitely come under underlying determinants of health. In view of the fact that it is one of the most sacrosanct and valuable right of a citizen, and equally sacrosanct and sacred responsibility of the State, every citizen is entitled to look towards the State to perform obligation with top priority. Right to resolve conflicts by amicable methods of Arbitration, which directly affects the health of the community, will attract a priority programming for the State. Despite resource constraints, some obligations have an instantaneous effect, such as the undertaking to guarantee the right to health in a non-discriminatory method, to develop specific legislation and plans of action, or other similar steps towards the full recognition of this right, as is the case with any other human right.
In the global and ever-growing industry of health services, it is vital to have decision-makers who are neutral and independent and are able to adapt to existing substantive legal principles, to new conflicts and ambiguities which arise from constant transformations in medical care. Given these considerations, expertise in health care enables decision-makers to have realistic expectations of defendants and to make more correct and informed judgments about whether a medical practitioner violated the relevant standard of care or not.
The above examination demonstrates the advantage of an international arbitration framework in resolving the legal complexity of cross-border medical malpractice claims. By itself, arbitration goes remote in eliminating many of the legal ambiguities and hurdles of litigation in traditional court systems. This is a key advantage when addressing disputes involving conflicting medical malpractice regimes, expectations of recovery, and business practices. The suggestion of a two –step dispute resolution mechanism employing no-fault compensation and arbitration has the potential to accommodate a wide range of claims and businesses and consumers from diverse economies and backgrounds. Although this approach may not fully gratify the recovery expectations of all consumers or offer the strongest shield against legal liability for all businesses, it offers an efficient and fair negotiation by reducing contestable issues of liability and offering several routes of reliable redress to the fullest extent viable.
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