The Right to Health Litigation in Colombia: a Case-Study

Presented by Everaldo Lamprea

JSD Seminar, Stanford Law School.

March 31st, 2010.

POS Crisis (Basic Health Plan)

“Because your operation is not covered by the POS, this HMO has decided to make your payment easier… By installing an ATM machine

next to your bed”

Medication “killing” Prices

Patients’ protests (2010): “Health is a right, not a favor”

Year 

Tutelas Participation Anual growth rate

Health Total   Health Total

1999 21.301 86.313 24,68% - -

2000 24.843 131.764 18,85% 16,63% 52,66%

2001 34.319 133.272 25,75% 38,14% 1,14%

2002 42.734 143.887 29,70% 24,52% 7,96%

2003 51.944 149.439 34,76% 21,55% 3,86%

2004 72.033 198.125 36,36% 38,67% 32,58%

2005 81.017 224.27 36,12% 12,47% 13,20%

2006 96.226 256.166 37,56% 18,77% 14,22%

2007 107.238 283.637 37,81% 11,44% 10,72%

2008 142.957 344.468 41,50% 33,31% 21,45%

TOTAL 674.612 1.951.341 34,57%    

Right to health Tutelas growth (1999-2008)

Right to health Tutelas growth (1999-2008)

Public Costs of the Right to Health Litigation

Possible Variables

Privatization of the Health System Context

Since the 90s, Colombia has closely followed neoliberal reforms of the health system –IMF, WB, IDB (Homedes, 2005).

Strong privatization of the health system.

Strong deregulation of prices of pharmaceuticals.

Dominant role of private insurance companies (Colombian HMOs) and BigPharma companies.

Institutional framework

CONTEXT

Tutela: Simple, informal and effective mechanism for the protection of basic rights.

Widespread use of the Tutela, and change of Colombia’s legal culture.

THE TUTELA

The rights revolution

Judicial Elites Constitutional Court and legal academia

Fostering of progressive Constitutional theories by the judicial and academic elites.

Successful adoption of progressive discourse by the laymen and judges.

Successful creation of a “rights litigation culture”

The “hijacking” of litigation by opportunistic actors

EPS, BigPharma, Doctors and Patients CONTEXT

Strong economic incentives to promote health litigation, irrespective of public costs, by opportunistic private actors.

The problem of money “reimbursements” to the EPS by the Health Public Fund (Fosyga).

Incentives of BigPharma companies in pushing litigation of high-cost meds by Doctors and patients: possible manipulation of actors.

RESEARCH QUESTION

What other variables, besides those already identified by the literature, help to offer a more articulated and nuanced explanation of the enormous growth of health litigation in Colombia during the last two decades, and of its unprecedented costs?

Hypothesis

The variable of “Material Support” for litigation (Epp 1998) offered by Big Pharma Companies –through patients organizations – and, indirectly, by EPS –HMOs–could offer a more comprehensive explanation of the growth of health litigation in Colombia since 1992 and in the spiraling of costs associated with it.

Material Support BIG PHARMA & Patients organizations

Big Pharma transnational companies have encouraged health litigation by financing civil society organizations that offer judicial assistance to patients in need of expensive medication --usually produced by Big Pharma companies.

It is in the interest of Big Pharma companies that patients use judicial mechanisms such as the Tutela in order to obtain their expensive medication from EPS in a heavily deregulated market that favors the allocation of extremely high prices for high cost pharmaceuticals.

Material Support EPS Doctors and Legal Departments

Colombian EPS have fostered health litigation on expensive medication using a two-tier mechanism: first, by encouraging their doctors to prescribe the most expensive Big Phama products and treatments available in a heavily deregulated market, irrespective of costs; and second, by encouraging their legal departments to produce across the board rejections of such petitions of medications and treatments not included in the Basic Health Plan (POS).

This two-tiered process leaves patients with only one possibility: using judicial mechanisms, more commonly the Tutela, in order to obtain costly pharmaceutical products.

EPS have perceived considerable profits from inflating pharmaceutical prices --purchased at undisclosed prices from Big Pharma companies-- as a way to obtain reimbursements from the tax-payer financed fund (FOSYGA) according to such distorted prices.

METHODOLOGY GOALS

* I want to produce an empirically-based theory that, while adopting and rekindling the causes already described by the literature, incorporates an additional independent variable (the material support thesis) that is highly relevant to understand the outcomes of the dependent variable but that remains largely unexplored.

METHODOLOGY GOALS

My within case analysis is aimed at providing an empirical puzzle-solving and problem-driven research. As is the case of most non-parsimonious case-studies, I am interested in finding the conditions under which an specific outcome occurs, and the mechanisms through which they occur, rather than showing the frequency with which these conditions and their outcomes arise (as is usually the objective of parsimonious and statistically-based theories)

Methodological design

My research design depends on two factors:

1) Capability of doing fieldwork within Civil Society organizations that offer legal counsel to patients in need of expensive medication or treatments. So far, I have been able to identify three kinds of such organizations: (a) those registered in highly structured national organizations such as the Colombian Cancer Institute; (b) organizations that are part of more disheveled associations such as the High Cost Patients movement; (c) lawyers offices that offer pro bono legal counsel to patients in need of costly medication and treatment.

Methodological design

Capability of doing fieldwork within EPSs legal departments and with EPS medical committees. EPSs legal departments are rather small and only a handful of company lawyers are in charge of denying/accepting patient's petitions of costly medication and treatments, carving out defense strategies against patients' legal actions, and petitioning the governmental fund Fosyga for reimbursements following the provision of expensive medication and treatments. EPS medical committees define the baseline for accepting and denying patients’ petitions.

Patients Organizations: Methodological approach

I plan to conduct semi-structured interviews with individuals capable of offering an insider look into the litigation trends within their organizations. I also wish to have access to written records of the cases counseled by civil society organizations in order to know, among other things, the number of cases counseled by the organizations so far, what type of medications and treatments are the most commonly sought after by patients, whether a physician has previously prescribed the expensive medication or whether the civil society organization promotes a list of medications, the type of counsel offered to the patient (whether is a loose counsel or a more thoroughly-crafted counsel), the litigation outcomes, etc. I am also interested in uncovering the possible links uniting these civil society organizations with Big Pharma companies.

EPS Legal Departments and Medical Committees

I want to conduct semi-structured interviews with company lawyers currently working at EPS legal departments and with EPS doctors that are currently part of the Medical Committees. I would like to understand how the legal process, starting with patients' petition for a costly medication or treatment and ending with the EPS petitioning the FOSYGA fund for reimbursement, takes place at the EPSs legal departments. What rationales, construed by the medical committees, drives the EPSs rejection/acceptance decisions on patients' petitions? How do company lawyers understand and apply such rationales to concrete cases? If possible, I would like to access EPS litigation written records in order to uncover the most sought-after medication and treatments, and the prices used by EPS when petitioning the governmental FOSYGA fund for reimbursements after they have complied with a judicial injunction.

JUSTIFICATION

Civil society organizations have actually helped thousands of individuals to stay alive by channeling their demands through judicial means like the Tutela. Without this type of litigation, cancer, hemophilia, HIV, diabetes, renal dysfunction, among many other catastrophic illnesses, might have charged a higher toll in terms of lives.

JUSTIFICATION

Litigation seeking the delivery of high-cost pharmaceutical products excluded from the Colombian Basic Health Plan (POS) has a huge impact on the overall costs of health litigation in Colombia.

Only in 2008, the tax payer-financed fund FOSYGA paid to EPS approximately US$ 600 million for pharmaceutical products not included in the Basic Health Plan. Approximately US$ 250 million (roughly 25% of the total) went to pay EPSs for only twenty oncologic, arthritis, hemophilia and cholesterol pharmaceutical products (Observamed 2010). Most of these products were delivered by EPS following a Tutela injunction.

JUSTIFICATION

Need of placing an international literature on litigation on the right to health in the context of a country that, despite its significant right to health litigation activity, remains understudied.

I want to converse with a literature centered on the debate between theories that consider high impact litigation dead-end alley for social transformation (Rosemberg 2008) and theories that propose certain conditions under which grassroots mobilization can be bolstered by litigation (McCann 1994; Epp 1998). Yet, this trend of literature has not been applied or tested in Colombia, despite the figures that show an overwhelming use of right to health litigation in that country. My research project wants to be a first step on that direction.

THANKS!