Ask an Ethicist: Profiting from a cure

April 08, 2016

In partnership with the Rock Ethics Institute, Penn State Today’s feature column, "Ask an Ethicist," aims to shed light on ethical questions from our readers. Each article in this column will feature a different ethical question answered by a Penn State ethicist. We invite you to ask a question by filling out and submitting this form. An archive of the columns can be found on the Rock Ethics Institute website.

Question: I have learned that an acupuncturist has located a number of acupuncture points that help with eye diseases. Is it ethical for this acupuncturist to charge licensed acupuncturists a large sum of money to be able to learn their location? (There are no unique techniques or technologies required to be able to use them.)

Ethicist response: In essence, this question asks whether it is ethical to charge an access-limiting fee for medical knowledge.  That is an issue that has confounded society for nearly as long as we have recognized ownership in information. And we continue to debate the right answer. It is the broad question that underlies historic arguments over the ethics of enforcing patents on AIDS medicines in sub-Saharan Africa, restricting physician mobility with noncompete and confidentiality agreements and even the recent price increases for older pharmaceuticals in order to reap higher profits for investors.  To be sure, when the impact is heath care, the answer has higher stakes.

In this response, I’ll convey what I view as some important factors to consider. But I must be upfront and acknowledge that reasonable people can differ. I posed this question to one of my excellent business law classes to get an initial reaction. Because the class is comprised of highly intelligent, reflective and motivated students, you might think that we could identify the “right” – or at least better – answer. However, I found a diversity of opinions. Some students firmly believed that high prices for medical treatments are always unethical. Others believed that such prices might provide an incentive to discover new treatments, or fairly reward the efforts of the acupuncturist who made the discovery. These are the basic tensions that lie at the heart of information ownership, and there is no “correct” way to resolve them. At best, we can identify the issues that one must work through to make a personal choice.

Should medical knowledge be restricted?

First, consider the basic question of whether high prices for health care can ever be ethically justified. If one subscribes to a utilitarian framework, favoring choices that increase the common good, the answer is yes. High prices for a treatment or product may act as an incentive to invest in creation. Such an incentive is especially important if it takes considerable effort and time to uncover certain knowledge. In general, this view is not concerned with the past investment by the creator (her or his costs are “sunk”), but rather encouraging future investments that lead to new discoveries. Any positive impact must be weighed against the reduction in research by others that results from restricted access. On the other hand, if one chooses to view medical practice through a formalist lens that considers wide access or distributive justice as the only legitimate moral question, access limiting fees may be unethical no matter what the overall impact on innovation. A competing moral principle might be that a creator deserves a reward for his or her efforts, at least to provide a return on investment. We see threads of all of these perspectives in our society, even in the specific context of health care, and it is not clear in the abstract that any one must dictate the answer.

In the case of the acupuncturist, I might consider whether specific facts undermine the ethical justifications for high prices. For example, if the discovery of the new points was the result of happenstance or luck, and if acupuncturists generally do not respond to monetary incentives for discoveries, it is more difficult to view the high price for access as ethical.

Can medical knowledge be restricted?

Of course, it is important to keep in mind that a second, critically important question is whether it is even possible for the acupuncturist to control knowledge of the location of acupuncture points through legal means. If not, the community can respond by simply patronizing another acupuncturist who is willing to employ the same treatment for a lower price (thus side-stepping the question of the discoverer’s personal ethics). The ability to charge high prices for access to information is grounded in the law of intellectual property. Several different options exist for limiting access. For example, the acupuncture points could be considered a trade secret that would be illegal to misappropriate if subject to reasonable efforts to maintain secrecy. Acupuncture points have also been the subject of issued patents, though apparently not recently. Society can preempt such protection by excluding it from enforcement, as we did in 1996 for certain patented medical procedures enforced against practitioners. But even in the absence of formal legal protection, it is possible for professional associations to preserve rights through peer pressure (e.g., comedians and joke stealing).

The fact that both law and ethics play a role in answering this question suggests that community norms are relevant. One cannot restrict medical knowledge without risking some degree of backlash, and that feedback mechanism is useful in ensuring that ethical values are not subsumed by commercial interests.

Dan Cahoy is a professor of business law and dean’s faculty fellow at the Smeal College of Business. He has published extensively on the topic of information (intellectual property) rights and access to medicines.

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Note: The "Ask an Ethicist" column is a forum to promote ethical awareness and inquiry across the Penn State community. These articles represent the interests and judgments of each author as an individual scholar and are neither official positions of the Rock Ethics Institute nor Penn State University. They are designed to offer a possible approach to a subject and are not intended as definitive statements on what is or is not ethical in any given situation. Read the full disclaimer.

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    IMAGE: Penn State

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Last Updated May 19, 2016