Beware the Superbug
posted by Frank Pasquale
If you or a relative has ever been stuck in an intensive care unit with MRSA, you know how terrible an experience that is. According to Jerome Groopman, it’s probably about to become a much more common one in the US–thanks in part to a pervasive anti-regulatory mindset and multiple failures to publicly invest in drug research the private sector will not support:
[S]tudies. . . . on how often, and for how long, antibiotics should be prescribed . . . are much easier to conduct in countries where medicine is largely socialized and prescriptions are tightly regulated. . . . In Sweden, the government closely monitors all infections, and has the power to intervene as needed. “Our infection-control people have a lot of authority,” Giske said. “This is power from the legislation.” Once a resistant microbe is identified, stringent protocols are put in place, with dramatic results. Fewer than two per cent of the staphylococci in Sweden are MRSA, compared with sixty per cent in the United States. . . .
In the past, large pharmaceutical companies were the primary sources of antibiotic research. But many of these companies have abandoned the field. . . .Drug companies are looking for blockbuster therapies that must be taken daily for decades, drugs like Lipitor, for high cholesterol, or Zyprexa, for psychiatric disorders, used by millions of people and generating many billions of dollars each year. Antibiotics are used to treat infections, and are therefore prescribed only for days or weeks. . . . [Public-private partnerships can start to fill that gap, but] “The difficulty that we are faced with is that our budget has been flat for the last five years,” [NIAID Director Anthony] Fauci told me. “In real dollars, we’ve lost almost fifteen per cent purchasing power,” because of an inflation index of about three per cent for biomedical research and development.
Won’t Grover Norquist be proud of this budget-balancing triumph?
As Kevin Outterson has written, we face a stark choice: either develop conservation strategies for existing antibiotics, or invest in inventing new ones. There is no reason to think a private sector solution can address this issue adequately–note for instance the new questions about a recently commercialized response to sepsis. Ala William James, it’s time to think of the superbug as an enemy to be battled collectively.
August 18, 2008 at 5:54 pm
Posted in: Health Law
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Responses (4)
Dan R. - August 18, 2008 at 6:29 pm
Even worse for the drug companies — a new powerful antibiotic will only be rarely used. Doctors will try older drugs first, hoping to save the new one to ward off new resistances as long as possible.
JP - August 18, 2008 at 7:07 pm
A government imposed monopoly (the patent system), is a “private sector solution?”
A.J. Sutter - August 18, 2008 at 10:07 pm
Apropos of “A government imposed monopoly (the patent system), is a ‘private sector solution?’”: this is a fascinating piece of rhetoric.
On the one hand, “government-imposed” is a typical libertarian term favoring private effort and opposed to government intervention. But libertarians usually welcome the patent system (outside software) as creating incentives for private innovation. Even Uncle Milton allowed that the patent and copyright systems were good uses of government, because they created property rights (see, e.g., _Capitalism and Freedom_ @127). The other wrinkle is “-imposed”: patents are purely voluntary, at least from the patentee’s perspective. No one forces you to get a patent. You’re free to disclose your invention and let everyone compete with you on price and marketing. Or you can keep it as a trade secret. That people get patents is a kind of revealed preference, rather than a government requirement.
Apropos of Frank’s comment right after the block quote, is budget-balancing is really to blame? When has there been a balanced federal budget in the past 7 years? How often in the past 20?
Still, I agree that the patent system obviously has failed to work as an incentive (not that this is exceptional). Bruce Boyden made some interesting comments to Frank’s old post that’s linked in this one. He says:
“Don’t drug companies have an incentive to sell as many drugs as possible no matter what the patent protection is? … If you don’t have a patent, and your product is in danger of being imitated or is in fact challenged by competitors, that would seem to be the situation in which you’d want to sell the most the fastest. I suppose if there were some choice to be made — Company X can sell 100 lots now and 0 lots later, or can instead sell 50 lots now and 50 lots 10 years from now — then the length of patent exclusivity might add some amount of weight in favor of the first. But I don’t think super-bacteria present that sort of choice; they present the choice of 50 lots now (and 50 lots of some competitor’s drug now) versus 100 lots now. Given that choice, I think just about every profit-maximizing enterprise would have an incentive to opt for the latter.”
This begs the question of whether you’d bother to invest in a product you don’t have a patent in at all. (It also begs the question of whether real-life companies are “profit-maximizing”.) Especially in the pharma industry, there are many other expensive regulatory hoops you need to jump through even to manufacture generics. Major drug companies generally choose not to develop or sell products in which they don’t have some proprietary interest.
JP - August 19, 2008 at 11:42 am
A.J.,
My comment was purely rhetoric, and not really meant to engage with the substantive problem (which is hard, and even libertarians like me recognize that real public health issues like this may require public, rather than private, solutions).
However, Prof. Pasquale’s tendency to blame the “free market” for every scary headline he sees is becoming reflexive and careless. There are serious arguments that innovation is stifled because of the way intellectual property rights are distributed under the design of the current patent system. Prof. Pasquale’s assumption that problem’s with the current patent system means no “private sector solution” is possible is no less a “fascinating piece of rhetoric” than my comment.
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