Download EveraldoJSD_Presentation_March_31st_2010

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”
Right to health Tutelas
growth (1999-2008)
Tutelas
Year
Health
Participation
Total
Anual growth rate
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)
Tutelas
(Thousands)
400
350
300
250
Health
200
Total
150
100
50
0
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Public Costs of the Right to
Health Litigation
Tutela
(US$ Millions)
400.00
350.00
344.09
300.00
322.27
250.00
254.08
200.00
150.00
100.00
50.00
1.48
21.51
36.26
55.43
105.84
0.00
2001
2002
2003
2004
2005
2006
2007
2008
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
THE TUTELA
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 rights revolution
Constitutional Court and legal
academia
Judicial Elites

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 nonparsimonious 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!