Medical Care and the Enigma of Efficiency
Georgetown University Law Center, Business, Economics, and Regulatory Law Working Paper No. 184275
83 Pages Posted: 19 Nov 1999
Date Written: November 1999
Across a wide ideological spectrum, a standard wisdom now prevails in discussion of the law and policy of health care provision. In its essence, this wisdom holds that health policy should seek to deploy medical resources in a systematically rational manner, so as to maximize the clinical benefits that every dollar buys. This overarching conception of government's role frames debate over what health care law should seek to accomplish. In so doing, this conception rests the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what rationality requires. I argue in this paper that we are nowhere near to being able to agree upon such understandings. The quest for rational allocation of medical resources is beset by incomplete, conflicting, and shifting conceptions of what rationality requires. Our cognitive limitations, scientific ignorance, and normative disagreements underlie this pervasive uncertainty and instability. I first review the standard wisdom to show how pervasive and protean this problem is. The confused, even chaotic state of American health care law and policy today reflects our partial, inconsistent, and unstable approaches to rationality. In making systemic rationality the lodestar of medical resource allocation, we risk falling so far short of our goal as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define our aims more modestly, consistent with a picture of rationality as limited by context, discontinuous across different settings, and changeable with time. This inelegant picture, I suggest, opens the way toward a health policy that mediates wisely between our desire for public action to maximize the well-being of the many and our intimate wishes to be treated non-instrumentally, as separate ends. I conclude with an effort to identify the aspirations such a health policy should serve and to suggest how a strategy of accommodation among these aspirations might apply to a diverse range of legal controversies.
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