Hastings International and Comparative Law Review


The role of the judiciary and government agencies in the allocation of health care resources differs across national boundaries. This Article describes how institutions in Germany, the United Kingdom, and the United States approach conflicts and protect rights in rationing health care. Professor Jost first describes the legal aspects of decisions on distribution and financing of health care decisions, and then examines the existing institutions in each of these countries.

In Germany, the health insurance program is an employment- based social insurance system. Under a quasi-public scheme, nonprofit health insurance funds administer the program. The German health system is overseen by special courts that hear social insurance disputes, and appeals go to the higher courts. Despite a number of structural provisions to minimize legal disputes, coverage disputes and problems arise in several areas. Professor Jost describes the active role German courts take in conflicts over medical equipment coverage, alternative and experimental treatments, efficiency review, and judicial review of arbitration panel decisions.

In contrast, the British National Health Service is relatively free from judicial oversight. The NHS is centrally organized and administered by district offices that purchase health care services from private providers and NHS Trust hospitals. Under this hierarchy, the British system is one of the most efficient in the world. The allocation of health care resources is managed by a number of methods, ranging from delay to restrictions on available care. As Professor Jost describes, the British judiciary generally uphold the allocation decisions made by the NHS.

In the United States, health care resource allocation is managed under the Medicare/Medicaid system. Unlike. the United Kingdom, American courts are fairly active in supervising health care resource decisions. Although Medicare is a social insurance program, it provides fewer benefits than similar European systems. Statutory provisions limit judicial review of national coverage and medical necessity decisions. Courts are more active, however, in cases involving long term care. American courts are more active in issues arising under Medicaid, which finances health care for the needy; patients have greater access to the federal courts than under Medicare, and courts have often been sympathetic to Medicaid claims. At the same time, the amount of private health insurance litigation has grown tremendously. Court decisions on these issues, often under ERISA, reveal the difficulties of reliance on principles of contract to resolve health care resource allocation problems.

Professor Jost concludes with ideas on means to maintain judicial oversight of health care resource allocation decisions while preserving efficient use of such resources.