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Document Type

Article

Publication Date

Summer 2019

Publication Citation

94 Indiana Law Journal 1163 (2019)

Abstract

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns—a moral “corporate duty to rescue” (CDTR). Scholars in health law, business ethics, and bioethics have proposed that a CDTR applies to biopharmaceutical companies regarding access to their products. Rescue efforts are conceived as including product donations, price reductions, or tinkering with intellectual property management. This Article advances three primary arguments. First, analyzing pertinent law and principles, it argues that corporate managers and directors have the legal discretion to discharge a CDTR. Second, while there is legal discretion to discharge a CDTR, this Article argues that it is unclear what this moral duty demands of biopharmaceutical companies. Its application to the drug pricing and access context is not straightforward, morally speaking. Third, this Article argues that focus on a CDTR in the biopharmaceutical context, in some instances, may be misplaced. A duty to rescue allocates responsibility for rescue on the basis of who can help now and not on the basis of who has historically done what. Yet, wronging others generates significant reasons for the mitigation of that wrong to be the wrongdoer’s special moral responsibility. If there is culpable conduct, focus on a CDTR will fail to hold companies accountable, thereby obfuscating morally problematic corporate conduct. As access and pricing problems are at root normative, this Article contributes to larger debates both about what drug manufacturers owe patients regarding product access as well as what sorts of self-regulatory changes they justifiably could be urged to implement.

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