Antibiotic resistance menaces the population as a dire public health threat and costly social problem. Recent proposals to combat antibiotic resistance focus to a large degree on supply side approaches. Suggestions include tinkering with patent rights so that pharmaceutical companies have greater incentives to discover novel antibiotics as well as to resist overselling their newer drugs already on market. This Article argues that a primarily supply side emphasis unfortunately detracts attention from physicians' important demand side influences. Physicians have a vital and unavoidably necessary role to play in ensuring socially optimal access to antibiotics. Dismayingly, physicians' management of the antibiotic supply has been poor and their defense of population health tepid at best. Acting as a prudent steward of the antibiotic supply often seems to be at odds with a physician's commonly understood fiduciary duties, ethical obligations, and professional norms, all of which traditionally emphasize the individual health paradigm as opposed to population health responsibilities. Meanwhile, physicians face limited incentives for antibiotic conservation from other sources, such as malpractice liability, regulatory standards, and reimbursement systems. While multi-faceted efforts are needed to combat antibiotic resistance effectively, physician gatekeeping behavior should become a priority area of focus. This Article considers how health law and policy tools could favorably change the incentives physicians face for antibiotic conservation. A clear lesson from the managed care reform battles of the recent past is that interventions, to have the best chance of success, need to respect physician interest in clinical autonomy and individualized medicine even if, somewhat paradoxically, vigorously promoting population health perspectives. Also, physicians' legal and ethical obligations need to be reconceptualized in the antibiotic context in order to better support gatekeeping in defense of population health. The principal recommendation is for increased use of financial incentives to reward physicians for compliance with recommended guidelines on antibiotic prescribing. Although not a panacea, greater experimentation with financial incentives can provide a much needed jump-start to physician interest in antibiotic conservation and likely best address physicians' legitimate clinical autonomy concerns.

Policy debates over medical malpractice in the United States involve a complex amalgam of legal doctrine, public demands to address the problem of medical errors, and the interests of various stakeholder groups. Most parties can agree, however, that the current system for compensating medical injury performs poorly. It falls short of achieving its two main goals: compensation and deterrence. The current system of tort liability is “neither sensitive nor specific in its distribution of compensation:” the vast majority of patients injured by negligent medical care do not receive compensation, yet the system compensates some cases that do not appear to involve negligence. Sometimes, it awards more in noneconomic damages than seems reasonable to many observers. Ultimately, tort liability appears to do little to improve health care quality and safety, yet it spurs costly defensive medicine. Physicians and health care organizations face burdensome insurance and legal costs, leading some to threaten to curtail their services. These concerns about the burden of medical injury and the malpractice “crisis” have sharpened calls for reform.

The scope of product liability for prescription drug injuries is a highstakes matter. As the recent Vioxx litigation illustrates, drug manufacturers can face numerous lawsuits when users are injured by risks discovered only after the drug reaches the market. The extent to which Food and Drug Administration (FDA) decisions preempt tort liability has emerged as a major issue. The agency itself has issued a policy that favors preemption when a drug manufacturer consults with the agency about a new risk. The Supreme Court has found liability preempted for medical devices based on an express preemption provisions and is expected to make an important ruling on drug preemption this term in Wyeth v. Levine. Some believe that the Court will rule in favor of preemption even though there is no express statutory provision for drugs.

In 2007, an estimated 33.2 million people were living with HIV, 2.5 million had become infected, and 2.1 million died from the virus. The majority of infected individuals reside in Africa, where in some countries as many as 33.4% of adults have HIV. In developed countries, effective drug therapies have reduced AIDS-related deaths by over seventy percent each year. These drugs have been so effective that over the last two years the global number of individuals dying from AIDS-related illness has actually declined. These therapies, however, are currently sold for $10,000 USD a year, a purchase price that is not feasible for low income countries where the annual health expenditure may be only $29 per person. A lack of essential medicine is not only a problem for those suffering from AIDS. Low and middle-income countries are disproportionately burdened by many additional chronic and infectious illnesses. The World Health Organization (“WHO”) estimates that one third of the world's population cannot regularly access essential medicines. The WHO cites the high cost of drugs as one of the major hurdles countries face in obtaining access to medication. However, the high cost of these brand-name medications does not reflect their minimal production costs. Drug manufacturers can produce generic versions of these drugs for as little as 1/30th of the cost of their brand-name counterparts.