The Medical Cost Pandemic: Why Limiting Access to Cost-Effective Treatments Hurts the Global Poor

Table of ContentsI. Introduction 561II. limiting Access to Cost-Effective Treatments 563A. Pharmaceuticals 563B. Medical Donations 572C. Vaccines 576III. Granting Rights to Expensive Treatments 578A. Soobramoney 580B. Treatment Action Campaign 581C. Tutelas 582IV. Can Limiting Access Be Justified? 585A. Special Obligations 5861. The duty not to harm 5862. The duty to rescue 5923. The duty of reciprocity 594B. Global Justice 595C. Consequences 601V. Preventing the Pandemic 603A. Adequacy, Not Maximization 603B. Local Variation, Not Transnational Uniformity 606VI. Conclusion 609I. IntroductionIn 2003, Pauline Talty petitioned the Australian government to provide her a potentially lifesaving intestinal transplant.' No doctor in Australia had ever performed an intestinal transplant; at the University of Pittsburgh-the world center for intestinal transplants-they cost three million dollars. After initially refusing Talty's request, the Australian government eventually acquiesced under political pressure.1 2 In 2009, Talty left Australia for Pittsburgh, hoping to receive a transplant.3In 1874, the HMS Dido, too, left Australia, bound not for Pittsburgh but for Fiji.4 5 En route to Fiji, two passengers contracted measles, a disease prevalent in Australia but unknown in Fiji.3 In January 1875, the Dido docked in Fiji, where its passengers disembarked and unknowingly spread measles to the Fijians.6 7 By June, around 40,000 Fijians were dead.What else-beyond beginning in Sydney-does Talty's journey have in common with the Dido's, and why does either matter? This Article argues that international adoption of the norms that made Talty's journey possible threatens to produce a second pandemic. While the 1875 measles pandemic resulted from medical ignorance, what I call the "medical cost pandemic" stems not from ignorance but from good intentions. And, while the 1875 pandemic involved the developed world's pathogens inflicting devastation on a developing country, the medical cost pandemic spreads not through viruses or bacteria, but instead through norms and mandates. Well-intentioned mandates and norms threaten to enable expensive standards of care adopted in developed countries like the U.S. and Australia-standards of care that treat surgery like Talty's three-milliondollar intestinal transplant as an individual entitlement-to cross borders and devour the much scarcer resources of developing countries. While expensive and often cost-ineffective standards of care also imperil budgets and healthcare systems in the developed world, developing countries' more meager resources will come under strain far more quickly-just as measles was burdensome in Australia but catastrophic in Fiji.To see the catastrophe that mandating universal provision of the medical care Pauline Talty received would cause, return to Fiji, the victim of the 1875 pandemic. In 2008, its medical budget was approximately 140 million Fijian dollars (FJD), which was equivalent to 81 million U.S. dollars (USD), and Fiji's per-capita spending on health care was 165.33 FJD (96.18 USD).8 This means that the three million dollars Australia spent on Talty's transplant would have consumed more than three percent of Fiji's health care budget-more than would have been spent on medical care for thirty thousand Fijians. (In contrast, Australia's per capita spending on health care was twenty times Fiji's. …