Have Reforms Reconciled Health Rights Litigation and Priority Setting in Costa Rica?

The experience of Costa Rica highlights the potential for conflicts between the right to health and fair priority setting. For example, one study found that most favorable rulings by the Costa Rican constitutional court concerning claims for medications under the right to health were either for experimental treatments or for medicines that should have low priority based on health gain per unit of expenditure and severity of disease.(32) In order to better align rulings with priority setting criteria, in 2014, the court initiated a reform in its assessment of claims for medicine. This paper assesses this reform’s impact on the fairness of resource allocation. It finds three apparent effects: (1) a reduction in successful claims for experimental medication, which is beneficial; (2) an increase in the success rate of medication lawsuits, which is detrimental because most claims are for extremely cost-ineffective medications; and (3) a decline in the number of claims for medicine, which is beneficial because it forestalls such low-priority spending. This paper estimates that, taking all three effects into account, the reform has had a modest net positive impact on overall resource allocation. However, it also argues that there is a need for further reforms to lower the number of claims to low-priority medicines that are granted.