Toward Solving the Health Care Crisis: The Paradoxical Case for Universal Access to High Technology

Abstract:     
The current U.S. health care crisis is fueled in part by consumer demand for costly high technology health care services that support the goals of basic health care, namely, prevention, diagnosis, and treatment. Yet proposals for reform focus on access to basic minimums, or alternatively on rationing, of largely traditional health care services. When high technology basic health care services are denied by insurers, patients often seek alternative inefficient and costly means to obtain the services; if they forgo them, they may ultimately require emergency care that is more costly than the denied benefits. This Article suggests that, paradoxically, addressing the health care crisis may require legal structures that support universal access to the very technologies elevating the costs of health care under the current system. Using predictive technologies as a case study, the Article proposes a new paradigm for the distribution of basic health care services, which I term Basic Capability Equality of Health Care. The Article develops this universal access paradigm from the formal work of economist Amartya Sen, which has long been neglected in legal scholarship. Sen's theory of basic capability equality informs a framework for health care distribution that more fully considers patient freedom in choosing amongst effective medical services than dominant frameworks, without increased expenditures. Simply stated, under Basic Capability Equality of Health Care, individuals would have access to all clinically effective services - traditional and high technology - that support basic health care. Operating under insurance budget limitations and with physician guidance, individuals would make trade-offs and choose from amongst these goods, in order to maximize their health. This approach accounts better than traditional paradigms for biological variation that may influence patient choice as well as the indirect and uncertain basic health care benefits afforded by some high technology, such as predictive testing. While basic capability equality of health care provides strong support for patient choice of services, it does not lead to consumer-driven health care; patients will not manage their health care funds themselves, and consultation with physicians is vital to identifying and comparing medical treatments. The Article includes an Appendix that discusses how the capabilities enabled by basic health care services might be valued in order to make intrapersonal and interpersonal comparisons.

Number of Pages in PDF File: 53

Keywords: health care, medical jurisprudence

JEL Classification: I18

Accepted Paper Series