In this article, Altuğ and İdil explore the legal and ethical dimensions of Türkiye's booming medical tourism industry. Covering topics from accreditation and government support to legal challenges and dispute resolution, the article delves into the complexities of this dynamic sector.
Introduction
The expanding medical and health tourism industry has experienced significant growth in recent years. With the increase in the number of health and medical tourists, ethical and legal issues have come to the forefront. These issues encompass consumer and privacy protection, malpractice, organ trafficking, cross-border complexities, insurance, and facility accreditation, among others. This article delves into the critical concern of liability arising from damages incurred during the treatment process.
What is Medical Tourism and Health Tourism?
"Medical Tourism and Health Tourism" can be generally defined as traveling from one's place of residence ("departure country") to another place ("destination country") to acquire health-related services. This is a broad concept that not only benefits the destination country economically but also provides extensive opportunities for medical tourists. The term "medical tourism" is often used for receiving medical treatment and procedures in the destination country. In contrast, "health tourism" encompasses a wide range of health services in the destination country, including thermal spas, beauty treatments, rehabilitation, retirement communities, and services for older people. Globalization allows people to seek cost-effective yet high-quality medical services in other countries. According to the Medical Tourism Association, around 14 million people worldwide travel to other countries for medical care every year1. Many countries are investing in medical technologies and qualified healthcare facilities to attract more medical tourists.
The healthcare industry in Türkiye holds a strong global position. Türkiye is a focal point due to its strategic location and proximity to Europe, Asia, the Middle East, North and Central Africa, and Russia.
Medical Tourism in Türkiye
World-renowned accreditation organizations confirm the service quality of many hospitals in Türkiye. In fact, 38 Turkish hospitals have received accreditation from the Joint Commission International ("JCI").2 JCI accreditation signifies that a medical institution adheres to established and internationally recognized standards. Türkiye ranks seventh in the world in terms of the number of hospitals accredited by this organization, ensuring high-quality medical treatment.3 The cost of many procedures in Türkiye is 50-70% lower than in Europe, while the quality of medical care remains consistently high4. Türkiye has transformed into a fully equipped medical center for foreign patients. In the third quarter of 2022, the number of visitors to Türkiye for medical tourism was recorded at 880,000.5
Foreign patients are typically provided with services such as airport transfers, temporary hotel accommodation until they receive test results and require inpatient treatment, accommodation for relatives during the treatment period, 24/7 translation services, and assistance in preparing all necessary documents in both native and Turkish languages.
Incentives Provided by the Turkish Government
The government has provided support for health and medical tourism through the implementation of the health transformation program. Most facilities in the field of health and medical tourism have been encouraged through the introduction of tax incentives. Government contributions are also offered to cover the costs associated with documents, certificates, and accreditations required for healthcare facilities to comply with international technical legislation or operate in foreign markets.
One of the recent incentives introduced by the Turkish government is a website developed in collaboration with the Ministry of Health (the "Ministry") and the Ministry of Culture and Tourism, along with USHAŞ (International Health Services Inc.). This website is named "Health Türkiye" and can be accessed through the link "https://www.healthturkiye.com/." It provides various information about doctors, hospitals, destination healthcare guides, as well as tourist and cultural information.
Legal Considerations for Health Institutions in Medical Tourism: Main Challenges
Legal issues often arise in the context of cross-border health and medical tourism. These challenges encompass a range of issues, including language barriers, intermediary facilitator agencies, differences in organ transplantation regulations, as well as visa and residence issues. Within the legal framework, the transfer of medical records is a crucial concern often subject to objections. The European Union, recognizing the importance of safeguarding personal and medical data, has established specific regulations in this regard. Unfortunately, laws governing privacy and data transfer in many host countries for medical tourism remain largely unregulated.
The continuous emergence of disputes in the area of malpractice is due to the absence of an organized international system that can provide legal solutions for medical tourists. It is imperative to acknowledge that health institutions must be aware that international patients may be subject to the legal provisions of their home countries, unlike local patients. Furthermore, the lack of formal medical education in some beauty industry facilities poses a significant risk to patients and is a noteworthy source of disputes within the health tourism sector.
Regulations Established by the Turkish Government
The Ministry in the health tourism sector primarily uses two concepts. Patients are treated in different pricing schedules based on the following concepts:
Health services provided to people who travel from their places of residence to another place to seek health services (health tourists).
"Patients receiving services within the scope of Tourist Health" for tourists who must receive emergency or unplanned health services during their vacation.
Although the concepts are distinct, some issues in the field of health tourism remain unresolved. Reviewing the relevant legislation can help identify these problems. In this context, the legislation studies conducted by the Ministry to regulate issues in health tourism include the Regulation on Private Health Institutions Providing Outpatient Diagnosis and Treatment, the Regulation on Private Hospitals, the Regulation on Dialysis Centers, and the Regulation on International Health Tourism and Tourist Health (the "Regulation"), along with the Directive on Health Services to be Provided within the Scope of Health Tourism and Tourist Health.
Bilateral agreements signed by Türkiye should also be considered within the scope of international legislation on health tourism. Currently, Türkiye has entered into such agreements with more than 50 countries, contributing to the development of health tourism for both parties6.
Legal Procedure to Follow in Case of a Dispute
- Responsibility of the Medical Attendant: In case of a violation of the obligation of care and attention, the actions of the medical attendant, such as neglecting to administer prescribed medication to a patient resulting in harm or failing to monitor vital signs when medically necessary, will constitute a violation of the law and incur criminal liability. The Turkish Law of Obligations, Article 506, outlines the duty of care and attention between patients and doctors under a mandate agreement.
- Responsibility of the Medical Establishment: A public law relationship exists between the patient and the administration (public hospital). In accordance with Article 129/5 of the Constitution, as a result of faulty administrative action, legal action seeking compensation can be initiated against the Ministry. In cases of both service defects and personal faults, the Court of Cassation has established a judicial precedent allowing for lawsuits to be filed against the administration. A contractual relationship exists between the private hospital and the patient. The Court of Cassation acknowledges the existence of a contractual relationship between the patient and the private hospital, typically through a patient admission contract. According to established legal precedents, the hospital bears strict liability in accordance with Article 66 of the Turkish Law of Obligations. Resolution of conflicts between a private hospital and a patient should adhere to the legal provisions outlined in the mandate agreement. Mandate agreements in healthcare serve as critical tools for defining precise expectations and responsibilities between patients and healthcare providers, mitigating potential misunderstandings and disputes. They are legally binding documents that provide a framework for the provision of medical services while safeguarding the rights and interests of both parties involved. Patients should review and understand these agreements before undergoing any medical procedures in private hospitals.
- Distribution of Responsibility Between the Intermediary Company and the Doctor/Hospital: According to the Court of Cassation, the intermediary company and the doctor/hospital serving in Türkiye will be jointly responsible.
Potential Lawsuits
- Material/Moral Compensation: Compensation will be granted in accordance with the Turkish Law of Obligations, which corresponds to the jurisdiction of the location where the wrongful medical procedure occurred.
- Tort Action: Health tourists also have the option to file a lawsuit against the hospital/doctor under the provisions pertaining to a tortious act.
Conclusion
Medical tourism in Türkiye is a thriving industry, but it faces ethical and legal challenges that demand further legislation and regulation. Issues such as malpractice, consumer privacy, data protection, organ trafficking, and alternative medicine require attention. Stakeholders in the sector should proactively adopt "preventive law" measures to mitigate inconsistencies and mistakes, safeguarding the sector's integrity. In this context, health tourism companies should establish liability policies or compensation funds to address damages arising from the legal relationship between intermediary companies and international patients.
In an era of advancing technology, countries worldwide are focusing on different healthcare specialties. Türkiye, with its favorable position and quality healthcare services, aspires to capture a significant share of the global healthcare market, further cementing its position as a medical tourism hub. With the industry's exponential growth, ensuring ethical and legal standards remains paramount for the continued success of medical tourism in Türkiye and beyond.
With thanks to Ömer Emin Yılmaz for his assistance.
Footnotes
1. (Medical Tourism Thematic Intelligence Report 2023: Players, Trends, Industry Analysis, Value Chain, & Competitive Landscape, 2023)
2. (Search for JCI-Accredited Organizations, n.d.)
3. (Search for JCI-Accredited Organizations, n.d.)
4. (Health In Turkey, 2022)
5. (Global Medical Tourism Outlook in 2023, 2023)
6. (AYDIN, ŞEKER, & ŞAHAN, 2011)
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