What is civil liability in medical tourism, and how is it configured in Colombia?
Carlos Eduardo Paniagua Fuentes, Specialist in Medical Law at Externado University of Colombia.
Medical tourism in Colombia has gained momentum in recent years, drawing patients from various parts of the world seeking surgical, cosmetic, or specialized treatments at competitive costs and with shorter waiting times tan in their home countries. However, this phenomenon entails additional responsibilities for healthcare professionals and institutions that offer services to foreign patients. In legal terms, this is known as civil liability, which is triggered when harm (physical, psychological, or economic) is caused to a patient due to the negligent or culpable conduct of the physician or clinic. Below, we will explore how civil liability is configured in the context of medical tourism in Colombia, taking into account its two main branches: contractual liability and extra-contractual liability.
Contractual Liability
Contractual liability arises from the existence of a contract between the patient and the professional (or healthcare institution).
This contract can be formal (signed by both parties) or even tacit (when the patient accepts the healthcare services offered).
- Object of the Contract and Obligation of Result or Means
- In most medical treatments, the professional assumes an obligation of means, meaning they commit to using all their knowledge, skills, and scientific resources available, without guaranteeing a specific outcome.
- However, in aesthetic procedures, especially those that are purely cosmetic, Colombian case law has recognized the possible existence of an obligation of result. This implies that if certain physical or aesthetic changes are promised to the patient, failing to achieve those results could lead to contractual liability.
- Informed Consent
- This is a fundamental element of the contractual relationship. The physician is obliged to provide the patient—in understandable terms—with all relevant information on risks, benefits, possible complications, and alternatives to the procedure.
- In medical tourism, this step takes on particular importance. The professional must ensure that the patient fully understands all the
information, preferably in their native language or with the assistance of a qualified interpreter. - A shortfall in informed consent (for instance, if the consequences were not properly explained or if no documentation was provided in the appropriate language) can trigger contractual civil liability.
- Advertising and Medical Offers
- Offering packages and “promises” of results for surgeries and treatments creates a legitimate expectation in the foreign patient. Should the promised outcome fail to materialize, contractual liability might be claimed for breach or misleading advertising.
Extra-Contractual Liability
Extra-contractual liability applies when there is no formal contractual relationship (or it cannot be proven) between the healthcare professional and the patient, but harm is caused and can be attributed to the professional’s or institution’s acts, omissions, or negligence. In Colombia, it is primarily based on Article 2341 of the Civil Code, which establishes the obligation to compensate for damages caused.
- Fault or Negligence
- To establish extra-contractual liability, the patient must prove that the damage was caused by the negligent or culpable conduct of the physician or clinic. This includes the lack of due diligence in care, omissions in medical protocols, or the performance of procedures for which the professional or institution was not authorized.
- Causal Link
- It must be shown that the harm directly resulted from the professional’s act or omission. In the case of foreign patients, gathering evidence can be complex, especially if they return to their home country and complications arise later. However, the Colombian courts retain jurisdiction over incidents that occur within Colombian territory.
- Compensable Damage
- This encompasses both physical harm and moral or psychological harm. In medical tourism, there is often an additional economic impact from addressing complications away from the site where the procedure was performed (treatments in the patient’s home country, additional travel expenses, etc.).
The Importance of Informed Consent in Medical Tourism
Informed consent is the cornerstone that unites and bolsters the two forms of civil liability. By receiving adequate information, the patient can make a well-informed decision about whether or not to undergo a particular treatment or surgery. In the context of a foreign patient,
additional steps are required:
Translation and Linguistic Clarity
- The patient must understand all terms and warnings; a document in Spanish alone is insufficient if the patient does not speak the language.
- Explanation of Risks and Common Complications
- The professional must inform the patient of possible consequences, ranging from the most common to the most serious.
- Signature and Documentation
It is essential for the document to be properly signed by both parties and then filed in the medical record for future reference if needed.
Quality Standards and Certification Protocols
To reduce the risk of incurring both contractual and extra-contractual liability, healthcare professionals and clinics offering services to
medical tourists should:
- Comply with Certification Requirements
- Obtain official accreditation and keep all documentation up to date (records from the relevant Health Secretariat and/or Ministry of Health).
- Demonstrate the competency of healthcare personnel and the suitability of their infrastructure.
- Adhere to International Safety and Hygiene Protocols
This includes infection prevention, biosecurity measures, and hospital waste management. - Maintain Thorough Medical Records
- The medical record must accurately reflect the procedures performed, the risks explained, the patient’s postoperative course, and any incidents or complications.
- Offer Adequate Postoperative Follow-Up
- To the extent possible, provide post-surgical check-ups and contingency plans for complications.
- Inform the patient about postoperative care, recovery time, and which medical professional to see in their home country if necessary.
Civil liability in medical tourism in Colombia
follows the same basic principles as for domestic patients, but with the added complexity of linguistic, cultural, and logistical barriers for foreign patients. To avoid legal disputes, it is crucial that physicians and clinics deliver high-quality services, with diligence and transparency—particularly during the information phase—and uphold the lex artis.
Proper management of informed consent, together with strict adherence to accreditation standards and quality protocols, protects both
patients and healthcare professionals, ensuring a safe and reliable experience for all those involved in the growing medical tourism sector.