Health rights litigation and access to medicines: Priority classification of successful cases from Costa Rica’s constitutional chamber of the supreme court

Abstract

Although Costa Rica has no explicit constitutional right to health, its constitutional chamber of the Supreme Court (Sala IV) has become increasingly central to the resolution of many health care decisions. Some argue that courts’ decisions about individuals’ access to very expensive medications could upset the country’s medical priorities and harm the state’s general health care provision capacity. This article assesses whether health rights litigation concerning the right to medications leads to more fairness in access to medications in Costa Rica. We review randomly selected access to medicines cases successfully claimed at the Sala IV in 2008 and classify them into four priority groups using standard priority-setting criteria. We find that 2.7% of the successful cases fall into priority group I (highest priority), 27% in group II, 48.6% in group III, and 21.6% in group IV (experimental treatment). Our analysis reveals a majority of successful health rights litigation for medications results in court-mandated provision of new, expensive drugs, many with only marginal benefits. More than 70% of the successful cases evaluated concerned medications judged to be of low priority. Based on these cases, we cannot conclude that litigation leads to more fairness in access to medications.