Revisiting Health Rights Litigation and Access to Medications in Costa Rica: Preliminary Evidence from the Cochrane Collaboration Reform

In response to the incremental creation of an expansive constitutional right to health in Costa Rica, the country’s rights-friendly constitutional chamber of the Supreme Court (known as the Sala IV) unleashed a flood of litigation for medications, treatments, and other health care issues. This development was met by widespread criticism from within the health sector, which complained that the court’s jurisprudence routinely elevated the right to health above financial considerations, thus posing a threat to the financial well-being of the state-run health care system.(1) Further, a 2014 study by Ole Frithjof Norheim and Bruce Wilson examining successful health rights litigation revealed that more than 70% of favorable rulings were for low-priority medications, suggesting a lack of fairness in access to medications in Costa Rica.(2) To address some of these criticisms, the Sala IV initiated a partnership in 2014 with the Cochrane Collaboration to incorporate medical expert evaluations into its decision-making process for claims seeking access to medications. This article examines the court’s reformed decision-making process to determine whether the increased reliance on medical expertise has changed health rights jurisprudence. We reviewed all medication claims from 2016 and classified the successful cases into four groups using standard priority-setting criteria. We then compared these results with rulings issued in 2008, prior to the court’s reform (and the year analyzed in Norheim and Wilson’s study). Our analysis reveals that under the court’s new rules, the probability of winning a medication lawsuit has increased significantly; moreover, the percentage of rulings granting experimental medications has declined while the percentage granting high-priority medications has increased. Based on these results, in comparison to the court’s pre-reform jurisprudence, we can tentatively conclude that the new process has led to some minor gains in fairness.