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 multifaceted 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.
Although once viewed as miracle drugs, antibiotics1 have turned out to be fragile weapons in the fight against infectious disease. Antibiotic resistance2 undermines a drug's ability to treat illness. Problems with resistance can develop insidiously, as bacteria evolve, adapt, and otherwise change over time so that a medication previously thought useful in controlling the bacteria no longer proves effective. Antibiotic resistance menaces the population as a dire public health threat and costly social problem. The Institute of Medicine estimates that antibiotic-resistant infections generate costs as high as $4 to $5 billion per year in the United States.3 Antibiotic resistance appears to be not only on the rise, but accelerating.4 Alarming increases in infection rates have been observed for methicillin-resistant staphylococcus aureus (MRSA) and vancomycin-resistant enterococci (VRE), drug-resistant forms of bacteria associated with hospital-acquired infection.5 Indeed, a recent government prevalence study suggests that over 18,000 patients the each year in the United States as a result of MRSA, exceeding the number of deaths attributable to HIV-AIDS, Parkinson's, emphysema, or homicide.6 Moreover, some resistant forms of infection simply cannot be treated, as is evident with recent concerns about possible outbreaks of extensively drug-resistant (XDR) tuberculosis.7 Because resistance can develop across as well as within different classes of drugs, new antibiotics may face increasingly limited time windows before running into resistance problems. …