Abstract

http://ssrn.com/abstract=2423024
 


 



The Presumption Against Expensive Health Care Consumption


Christopher T. Robertson


University of Arizona - James E. Rogers College of Law; Harvard University - Edmond J. Safra Center for Ethics; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

May 30, 2014

49 Tulsa Law Review 627 (2014, Forthcoming)
Arizona Legal Studies Discussion Paper No. 14-12

Abstract:     
This essay, as part of a symposium in honor of Professor Einer Elhauge, starts with his recognition that, for both epistemic and normative reasons, it remains profoundly difficult to regulate particular uses of medical technologies on the basis of their cost-benefit ratios. Nonetheless, this essay argues in favor of a general regulatory presumption against consumption for the most expensive medical technology usages, which drive most of aggregate healthcare spending. This essay synthesizes twelve facts about the ways in which medical technologies are produced, regulated, studied, and consumed to suggest that it is quite unlikely that the most expensive usages of medical technologies will have benefits exceeding their costs. These considerations include the contingent relationship between research investments and health outcomes, the FDA’s lack of authority to consider cost-effectiveness, and the prevalence of off-label uses that have no proof of efficacy. Where efficacy is shown, there are problems in scientific research including publication biases, lack of effective randomization and blinding, commercial biases in design and conduct, the use of surrogates for improved health, small demonstrated benefits not enjoyed by most consumers, and the lack of power and time to detect adverse outcomes. There are also market failures because consumers are unable to estimate benefits and have little or no exposure to cost, while their advisors, physicians, have misaligned incentives. Ultimately, aggregate data across time, geography, and experimental conditions shows that much medical spending is along the “flat of the curve,” not delivering commensurate healthcare value. Thus even without particularized rationing decisions, crude regulatory tools that reduce consumption, while preserving choice, are likely to promote rather than hinder welfare.

Number of Pages in PDF File: 19

Keywords: Elhauge, medical technologies, regulation, healthcare spending, medical spending, expensive medical technology

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Date posted: April 10, 2014 ; Last revised: May 31, 2014

Suggested Citation

Robertson, Christopher T., The Presumption Against Expensive Health Care Consumption (May 30, 2014). 49 Tulsa Law Review 627 (2014, Forthcoming); Arizona Legal Studies Discussion Paper No. 14-12. Available at SSRN: http://ssrn.com/abstract=2423024

Contact Information

Christopher T. Robertson (Contact Author)
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
HOME PAGE: http://www.law.arizona.edu/faculty/getprofile.cfm?facultyid=714

Harvard University - Edmond J. Safra Center for Ethics ( email )
124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )
23 Everett Street
Cambridge, MA 02155
United States
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