Shen Xince, Qu Yunfeng, Wu Qiuzi
School of Law, Hainan University, Haikou, Hainan, People's Republic of China.
Graduate Institute of Interpretation and Translation, Beijing Foreign Studies University, Beijing, People's Republic of China.
Risk Manag Healthc Policy. 2020 Oct 28;13:2291-2299. doi: 10.2147/RMHP.S271224. eCollection 2020.
While China's medical tourism industry is increasingly standardized and institutionalized, the relevant research assessing its legal risks is still absent. This paper aims to evaluate the risks of medical tourism from the legal perspective by exploring the conflict between the developing new practice and the existing legal system, summarizing the legal risks in medical tourism, and proposing measures and suggestions to mitigate such risks. The empirical research method is employed to review the legal risks in Boao Lecheng International Medical Tourism Pilot Zone, which is the pioneering project of China's development within the medical tourism industry. These research methods include collecting the latest medical tourism policies and regulations, judicial decisions, and on-the-spot investigation of the Pilot Zone. It is found that the legal risks in medical tourism activities are mainly concentrated in the administrative, civil and litigious legal relations, and concern four major subjects which are regulators, medical operators, tourism operators and consumers. For regulators, their administrative supervision has not been well in place before and during medical tourism activities, and there remain legal gaps in regulation. In terms of the protection of consumers' substantive rights, service providers and operators may evade their responsibilities by exploring the vacuum area during the transition from the old laws to the new ones, and the conflicting provisions exist between the special laws and general ones. Concerning the protection of consumers' litigation rights, there are many obstacles for consumers to safeguard their interests through litigation in a foreign land. In this paper, medical tourism activities are identified among four legal subjects and involving three types of legal risks, in the hope to help improve the overall understanding of medical tourism from the legal perspective, and put forward targeted suggestions on the potential legal risks.
尽管中国医疗旅游行业日益规范和制度化，但评估其法律风险的相关研究仍付诸阙如。本文旨在从法律视角评估医疗旅游风险，通过探究新兴实践与现行法律体系之间的冲突，总结医疗旅游中的法律风险，并提出降低此类风险的措施和建议。采用实证研究方法审视博鳌乐城国际医疗旅游先行区的法律风险，该先行区是中国医疗旅游产业发展的开创性项目。这些研究方法包括收集最新的医疗旅游政策法规、司法判决以及对先行区的实地调研。研究发现，医疗旅游活动中的法律风险主要集中在行政、民事和诉讼法律关系方面，涉及监管者、医疗经营者、旅游经营者和消费者四大主体。对于监管者而言，其在医疗旅游活动前后的行政监管落实不到位，监管存在法律空白。在消费者实体权利保护方面，服务提供者和经营者可能会利用新旧法律过渡时期的空白区域逃避责任，且特别法与一般法之间存在冲突性规定。在消费者诉讼权利保护方面，消费者在异地通过诉讼维护自身权益存在诸多障碍。本文在四大法律主体间识别出医疗旅游活动并涉及三类法律风险，以期有助于从法律视角增进对医疗旅游的整体认识，并针对潜在法律风险提出有针对性的建议。
