FOR FREE TEST INJECTION? TEN MYTHS OF CRITICAL LITERATURE AND A DEFENSE OF EVIDENCE BASED HEALTH JUDICIALIZATION

This essay discusses healthcare litigation based on its myths and makes a call for reflections on law, economics, and healthcare to be based on reliable empirical evidence. Critical legal studies on healthcare litigation are criticized through the presentation of ten myths: (1) the myth of excessive healthcare litigation; (2) the myth of the centrality of litigation for healthcare management; (3) the myth of healthcare worsening due to litigation; (4) the myth of separation of powers' violation; (5) the myth of the superior institutional capacity of the Executive Branch; (6) the myth of deference as a mandatory command; (7) the myth of violation of federalism; (8) the myth of judges' lack of concern about costs; (9) the myth of the irrelevance of discussing costs; (10) the myth of healthcare litigation as a universal panacea. Judges must protect the fundamental right to healthcare, considering the practical consequences of decisions, both individually and collectively. The Judiciary must reaffirm itself as the guardian of the Constitution, performing its role in healthcare litigation based on empirical evidence.