Has the Cochrane Collaboration Reform Helped Reconcile Health Rights Litigation and Fair Priority Setting in Costa Rica ?

The Costa Rican experience highlights the potential for conflicts between fair priority setting and litigation based on citizens’ right to health. For example, one study found that a large majority of favorable rulings concerning claims for medications by the Costa Rican constitutional court were for experimental or other low-priority treatments. In order to better align judicial judgments with priority setting criteria, in 2014, the court began a partnership with the Cochrane Collaboration to assess medicines’ effectiveness. A recent study argues that this reform has increased the chance of a lawsuit being successful and has reduced the number of successful claims for experimental medications. It concludes that this reform has led to modest gains in fairness. This paper identifies three shortcomings in that study’s analysis. First, it does not establish the statistical significance of the effects it highlights. Second, it overlooks that the reform may have changed the number of cases brought. Third, it does not scrutinize the joint impact of these effects. This paper proceeds to remedy these lacks. It finds that both the increase in the success rate of medication lawsuits and the reduction in successful claims for experimental medication are statistically significant. Furthermore, it finds that the number of claims for medicine has declined significantly. Finally, it argues that because the majority of claims are still for low-priority medications, the increase in the success rate has had a negative effect on the fairness of resource allocation that likely outweighs the decline in experimental treatments. It is primarily because of the apparent deterrent effect of the reform on claims that its net impact on the fairness of resource allocation is likely to be positive.