Is the judicialization of health care bad for equity? A scoping review

The term "judicialization of health care" describes the use of rights-based litigation to demand access to pharmaceuticals and medical treatments. The judicialization of health care in Latin America has two defining features. Firstly, it has been conducted in an individualized fashion. Secondly, it is highly pharmaceuticalized, since most public expenditure related to health rights litigation is invested in paying for costly medications. Recent studies also suggest that the judicialization of health care is bad for equity since it skews limited health resources away from the poorest citizens and in favor of the more affluent.

We used a scoping methodology to analyze the study-design and the quality of the data employed by the literature that explicitly assesses the impact of the judicialization of health care on equity in Latin American countries. Articles were selected on the basis of their use of an empirical strategy to determine the effect of the judicialization on equity. We searched Google Scholar, PubMed, Scopus, and Scielo databases. We also went through the studies' bibliographic references, and hand-searched key journals and authors.

Half of the studies analyzed find that judicialization has a negative impact on equity, but the other half finds that evidence is inconclusive or that the judicialization of healthcare has a positive effect on equity. The majority of the studies that collect their own data rely on limited samples that are sometimes not representative and mostly not generalizable. Only few studies conduct systematic comparative analysis of different cross-country or within-country cases. None of the studies reviewed aim to establish causation between judicialization and health outcomes.

We conclude that in order to prove or disprove that the judicialization of health care is at odds with equity we first need to overcome the methodological and research-design problems that have beleaguered the available empirical studies. We also conclude that pharmaceuticals' price regulation, state capacity, the behavior of litigants, prescribers and judges, and the economic interests of big-pharma, are variables that have to be incorporated into a rigorous empirical literature capable of assessing the regressive effect of health rights' litigation.