Medical pharmaceuticals and distributive justice

Cambridge Quarterly of Healthcare Ethics

Volumn 17, Issue 1, 2008, Pages 30-44

  Boylan, Michael ^a  

^a MARYMOUNT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COOPERATION; DEVELOPING COUNTRY; DRUG COST; DRUG INDUSTRY; ECONOMICS; ETHICS; HEALTH CARE COST; HEALTH CARE PLANNING; HUMAN; METHODOLOGY; PATENT; RESOURCE ALLOCATION; REVIEW; SOCIAL BEHAVIOR; SOCIAL JUSTICE; STANDARD; UTILIZATION REVIEW;

COOPERATIVE BEHAVIOR; DEVELOPING COUNTRIES; DRUG COSTS; DRUG INDUSTRY; HEALTH CARE SECTOR; HEALTH RESOURCES; HUMANS; PATENTS AS TOPIC; RESOURCE ALLOCATION; SOCIAL JUSTICE; SOCIAL RESPONSIBILITY;

EID: 37349065457     PISSN: 09631801     EISSN: 14692147     Source Type: Journal    
DOI: 10.1017/S0963180108080043     Document Type: Review

References (85)

1. Pellegrino ED. The internal morality of clinical medicine: A paradigm for the ethics of the helping and healing professions. Journal of Medicine and Philosophy 2001;26:559-79;
2. Pellegrino ED, Thomasma DC. A Philosophical Basis of Medical Practice. New York: Oxford University Press; 1981;
3. Wright SM, Beasley BW. Motivating factors for academic physicians within departments of medicine. Mayo Clinic Proceedings 2004;79:1145-50.
4. Beauchamp TL, Childress JF. Principles of Medical Ethics, 5th ed. New York: Oxford University Press; 2001;
5. Boylan M, ed. Medical Ethics. Upper Saddle River, N.J.: Prentice Hall; 2000: 158-9.
6. Reisel WD, Sama LM. The distribution of life-saving pharmaceuticals. Business and Society Review 2003;108:365-87;
7. Greider K. The Big Fix: How the Pharmaceutical Industry Rips Off American Consumers. New York: Public Affairs; 2003;
8. Hester M. Rethinking the residency matching process and questioning the value of competition in medicine. Academic Medicine 2001;76:345-47;
9. What constitutes a "just" match? A reply to Murphy. Cambridge Quarterly of Healthcare Ethics 2003;12:78-82.
10. Pereira A. Live and let live: Healthcare is a fundamental human right. Connecticut Public Interest Law Journal 2004;3:481-503;
11. Boylan M. The universal right to healthcare. International Journal of Ethics and Politics 2001;1:197-212;
12. Andrulis DP, Duchon LM. Hospital care in the 100 largest cities and their suburbs 1996-2002. Princeton, N.J.: Robert Wood Johnson Foundation; 2005.
13. See note 4, Pereira 2004.
14. I believe such aspirational exercises are not futile because they point to directions toward which we should strive; Boylan M. A Just Society. Lanham, Md.: Rowman and Littlefield; 2004; ch. 3.
15. It should be obvious that these brief comments are meant to be suggestive rather than exhaustive. There are certainly a large number of worldviews that might spring from each position. Also, the positions themselves require a great deal more exposition for anything aspiring to be a complete treatment. The purpose here is to provide just enough detail so that an examination of secondary good desert might proceed.
16. See note 6, Boylan 2004:ch. 7.
17. Basic goods Level 1: most deeply embedded (that which is absolutely necessary for human action): food, clothing, shelter, protection from unwarranted bodily harm (including health care). Level 2: deeply embedded (that which is necessary for effective basic action within any given society) • Literacy in the language of the country • Basic mathematical skills • Other fundamental skills necessary to be an effective agent in that country, for example, in the United States some computer literacy is necessary • Some familiarity with the culture and history of the country in which one lives • The assurance that those you interact with are not lying to promote their own interests • The assurance that those you interact with will recognize your human dignity (as per above) and not exploit you as a means only • Basic human rights such as those listed in the U.S. Bill of Rights and the United Nations Universal Declaration of Human Rights Secondary goods Level 1: life enhancing, medium to high-medium on embeddedness • Basic societal respect • Equal opportunity to compete for the prudential goods of society • Ability to pursue a life plan according to the personal worldview imperative • Ability to participate equally as an agent in the shared community worldview imperative Level 2: useful, medium to low medium embeddedness • Ability to utilize one's real and portable property in the manner she chooses • Ability to gain from and exploit the consequences of one's labor regardless of starting point • Ability to pursue goods that are generally owned by most citizens, for example, in the United States today a telephone, television, and automobile would fit into this class. Level 3: luxurious, low embeddedness • Ability to pursue goods that are pleasant even though they are far removed from action and from the expectations of most citizens within a given country, for example, in the United States today a European vacation would fit into this class • Ability to exert one's will so that one might extract a disproportionate share of society's resources for one's own use.
18. See note 6, Boylan 2004:ch. 3.
19. See note 6, Boylan 2004:ch. 7.
20. Boylan M. The moral imperative to maintain public health. In: Boylan M, ed. Public Health Policy and Ethics. Dordrecht: Kluwer; 2004:xvii-xxxiv.
21. My argument for this is as follows: a. Before anything else, all people desire to act: fact b. Whatever all people desire before anything else is natural to that species: fact c. Desiring to act is natural to homo sapiens: a,b d. People value what is natural to them: assertion e. What people value they wish to protect: assertion f. All people wish to protect their ability to act beyond all else: a,c-e g. The strongest interpersonal "oughts" are expressed via our highest value systems-religion, morality, and aesthetics: assertion h. All people must agree, on pain of logical contradiction, that what is natural and desirable to them individually is natural and desirable to everyone collectively and individually: assertion i. Everyone must seek personal protection for her own ability to act via religion, morality, and/or aesthetics: f,g j. Everyone, on pain of logical contradiction, must admit that all other humans will seek personal protection of their ability to act via religion, morality, and/or aesthetics: h,i k. All people must agree, on pain of logical contradiction, that because the attribution of the basic goods of agency are predicated generally, that it is inconsistent to assert idiosyncratic preferences: fact l. Goods that are claimed through generic predication apply equally to each agent and everyone has a stake in their protection: j,k m. Rights and Goods are correlative: assertion n. Everyone has at least a moral right to the basic goods of agency and others in the society have a duty to provide those goods to all: l,m Obviously, this presentation is quite compact. For those wishing a more comprehensive presentation, see note 6, Boylan 2004:ch. 1-3.
22. Gewirth A. Reason and Morality. Chicago: University of Chicago Press; 1978:53-8;
23. Shue H. Basic Rights: Subsistence, Affluence and U.S. Foreign Policy. 2nd ed. Princeton, N.J.: Princeton University Press; 1986:15ff;
24. Rawls J. A Theory of Justice. Cambridge, Mass.: Harvard University Press; 1971: sect. 15;
25. Sen A. Inequality Reexamined. Cambridge, Mass.: Harvard University Press; 1992:ch. 3; see note 6, Boylan 2004:ch. 3.
26. The logical structure of this duty is "X has a right to Y against Z in virtue of M," where X is a person, Y is a good of agency, Z is a person or group, and M is the legitimating moral institution. In this case the rights claim infers the duty of "Z has a duty to provide X with Y in virtue of M." This argument is an embellishment of Hofeld W. Fundamental Legal Conceptions. New Haven, Conn.: Yale University Press; 1919.
27. I give my commentary of this in Boylan M. Basic Ethics. Upper Saddle River, N.J.: Prentice Hall; 2000:89, 102.
28. I might note that in this instance there are others who recognize this right, for example, The United Nations Universal Declaration of Human Rights.
29. See note 6, Boylan 2004:225, 240, 245.
30. Wilton P, Smith RD. Devolved budgetary responsibility in primary care: A cross-country assessment of the impact on efficiency. European Journal of Health Economics 2002;3:17-25.
31. Dietrich ES. Germany's attempts to control drug prices and expenditures: Success or failure? Journal of Pharmaceutical Finance, Economics and Policy 2003;12:205-34;
32. Contoyannis P, Hurley J, Grootendorst P, Jeon SH, Tamblyn R. Estimating the price elasticity of expenditure for prescription drugs in the presence of non-linear price schedules: An illustration from Quebec, Canada. Health Economics 2005;14:909-23;
33. Grootendorstl P, Levine M. Do drug plans matter? Effects of drug plan eligibility on drug use among the elderly, social assistance recipients and the general population. Quantitative Studies in Economics and Population Research Reports. Hamilton, Ont.: McMaster University; 2002.
34. Ungar WJ, Ariely R. Health insurance, access to prescription medicines and health outcomes in children. Expert Review of Pharmacoeconomics and Outcomes Research 2005;5:215-25.
35. Cremieux PY, Meilleur MC, Ouellette P, Petit P, Zelder M, Potvin K. Public and private pharmaceutical spending as determinants of health outcomes in Canada. Health Economics 2005;14:107-16.
36. Barry M, Tilson L, Ryan M. Pricing and reimbursement of drugs in Ireland. European Journal of Health Economics 2004;5:190-4;
37. Danzoncia PM, Ketcham JD. Reference pricing of pharmaceuticals for Medicare: Evidence from Germany, the Netherlands, and New Zealand. National Bureau of Economic Research Working Paper 10007; 2003.
38. Compare Sketris I, Bowles S, Manuel R. Canadian public policies and practices related to drug prices, utilization and expenditures. Journal of Pharmaceutical Finance, Economics and Policy 2003;12:23-54.
39. Taylor D. Regulating the prices and costs of medicine in the United Kingdom. Journal of Pharmaceutical Finance, Economics and Policy 2003;12:235-60;
40. Houlton S. When is enough? Pharmaceutical Executive 2004;24:42;
41. Slinn J. Price controls or control through prices? Regulating the cost and consumption of prescription pharmaceuticals in the UK, 1948-67. Business History 2005;47:352-66;
42. Walley T, Mrazek M, Mossialos E. Regulating pharmaceutical markets: Improving efficiency and controlling costs in the UK. The International Journal of Health Planning and Management 2005;20:375;
43. Walley T, Earl-Slater A, Haycox A, Bagust A. An integrated national pharmaceutical policy for the United Kingdom? British Medical Journal 2000;321:1523-6.
44. An example of this in the United States was mentioned to me by Jonathan Brown, whose son was saved from death in infancy by a single drug dose that was billed at $25,000 per dose. Dr. Brown, who is a federal economist, told me that the pharmaceutical company justified its pricing on the basis of the cost of an intensive care stay ($5,000 a day). The child's condition would normally have required 7-10 days; thus, from the insurance company's perspective, $25,000 was a bargain!
45. Institute for OneWorld Health: A Nonprofit Pharmaceutical Company. Available from: URL: www.oneworldhealth.org, accessed Jun 12, 2006; Stix G. Making drugs, not profits. Scientific American 2004;290:42.
46. See note 13.
47. This was made very clear by the recent case of the possibly adulterated flu vaccine that had been purchased by the United States; Brown D. How the U.S. got down to two makers of flu vaccine. The Washington Post 2004 Oct 17.
48. Vogel G, Profitt F, Stone R. Ecologists roiled by misconduct case. Science 2004;303:606-9.
49. The concept of a reasonable profit is somewhat controversial. For example, some say that "reasonable" is defined as a willing seller meeting a willing buyer. But this smacks too much of the laissez-faire interpretation of capitalism (a competitive theory). Rather, I promote much more modest goals. For a discussion of this see MacDonald R. The cost to global health of drug company profits. Western Journal of Medicine 2001;174:302-3;
50. Maitland I. Priceless goods: How should life-saving drugs be priced? Business Ethics Quarterly 2002;12:451.
51. Compare Kneller R. Autarkic drug discovery in Japanese pharmaceutical companies: Insights into national differences in industrial innovation. Research Policy 2003;32:1805;
52. Lovrich J, Kobayashi T. Empirical study on the productivity of intangible assets in the Japanese pharmaceutical industry. Osaka Economic Papers 2003;53:163-82.
53. Hale V, Woo K, Levens Lipton H. Oxymoron no more: The potential of nonprofit drug companies to deliver on the promise of medicines for the developing world. Health Affairs 2005;24:1057-64.
54. See note 2, Boylan 2000:23-36.
55. See http://www.nih.gov/news/pr/dec2004/od-17.htm, last accessed May 19, 2006.
56. Of course, it should be acknowledged that bacteria and viruses do mutate so that we never want to rely on a sole drug to treat malaria, but this issue is best addressed in a cooperative rather than a competitive setting.
57. See Sherman PB, Oakley III EF. Pandemics and panaceas: The World Trade Organization's efforts to balance pharmaceutical patents and access to AIDS drugs. American Business Law Journal 2004;41:353-411.
58. McGee G. Gene patents can be ethical. Cambridge Quarterly of Healthcare Ethics 1998;7:417-21;
59. Rifkin J. The Biotech Century. New York: Putnam; 1998;
60. Resnik DB. DNA patents and human dignity. Journal of Law, Medicine and Ethics 2001;29:152-65;
61. Attaran A, Gillespie-White L. Do patents for antiretroviral drugs constrain access to AIDS treatment in Africa? JAMA 2001;285:1886-92;
62. De George RT. Intellectual property and pharmaceutical drugs: An ethical analysis. Business Ethics Quarterly 2005;15:549-75.
63. The details can be found in J.M. Smuckers attempt to patent. Seattle Times 2005 Apr 9. Available from: URL: http://seattletimes.nwsource.com/ html/food/202236171_pbjpatent09.html, last accessed Jun 1, 2006.
64. Boylan M. The principle of fair competition. In: Boylan M, ed. Business Ethics. Upper Saddle River, N.J.: Prentice Hall; 2001:115-25.
65. Eisenberg RS. How can you patent genes? American Journal of Bioethics 2002;2:3;
66. Sagoff M. Intellectual property and the products of nature. American Journal of Bioethics 2002;2:12-3;
67. Are genes individuals? In: Burley J, ed. A Companion to Genetic Ethics. Oxford: Blackwell; 2004;
68. Askland A. Patenting genes: A fast and furious primer. International Journal of Applied Philosophy 2003;17:267-75.
69. Weir R, ed. Stored Tissue Samples: Ethical, Legal and Public Policy Implications. Ames: University of Iowa Press; 1998;
70. Boylan M, Brown K. Genetic Engineering: Science and Ethics on the New Frontier. Upper Saddle River, N.J.: Prentice Hall; 2002.
71. Pammolli F, Magazzini L, Orsenigo L. The intensity of competition after patent expiry in pharmaceuticals: A cross-country analysis. Revue d'Economie Industrielle 2002;99:107-31.
72. See note 42, Boylan, Brown 2002:165-72.
73. See note 37, De George 2005; Leisinger KM. The corporate social responsibility of the pharmaceutical industry. Business Ethics Quarterly 2005;15:577-94.
74. Médecins sans Frontières. The campaign: What is the campaign? Available from: URL: www.accessmed-msf.org/campaign/campaign.shtm, accessed May 26, 2006; see note 26, OneWorld 2006.
75. Merck. The Story of Mectizan. Available from: URL: www.merck.com/about/ cr/mectizan/home.html, accessed Jun 2, 2006; GlaxoSmithKline. Lymphatic filariasis programme. Available from: URL: www.gsk.com/filariasis/index.htm, accessed Jun 2, 2006; Boehringer-Ingelheim. Viramune MTCT Donation Programme, accessed Dec 5, 2004.
76. Carey J. What's a fair price for drugs? Yes, the U.S. pays too much for its medicine. But don't blame it all on drugmakers. Business Week 2001;3730:105-6;
77. A Matter of Life and Death. New Scientist 2005;2487:44;
78. Berwick D, Sykes R, Achmat Z. "We all have AIDS": Case for reducing the cost of HIV drugs to zero. British Medical Journal (international ed.) 2004;324:214-8;
79. Kumarasamy N. Generic antiretroviral drugs-will they be the answer to HIV in the developing world? Lancet 2004;364:3-4;
80. Zimmerman R. Merck still draws fire for HIV drug for poor nations. Wall Street Journal 2004 Mar 3.
81. Nwaka S, Ridley RG. Virtual drug discovery and development for neglected diseases through public-private partnerships. Nature Reviews: Drug Discovery 2003;2:919-28;
82. Reich M, ed. Public-Private Partnerships. Available from: URL: www.hsph.harvrd.ecy/hcpds/partnerbook/Partnershipsbook.PDF, accessed May 4, 2006.
83. Centers for Medicare & Medicaid Services. Health care industry market update: Pharmaceuticals. Available from: URL: www.cms.hhs.gov/reports/hcimu/ hcimu_01102003.pdf, accessed Jun 6, 2006;
84. Families USA. Profiting from pain: Where prescription dollars go. Available from: URL: www.familiesusa.org/site/DocSServer/Ppreport.pdf?docID249, accessed Jun 10, 2006.
85. Reisel WD, Sama LM. The distribution of life-saving pharmaceuticals. Business and Society Review 2003;108:365-87.