The refusal of the health care provider to perform gastroplasty (bariatric surgery), which is necessary to treat the patient, is a violation of the rights of the person, because the delay in the authorization in question causes the insured to suffer. Based on this understanding, the First Specialized Civil Chamber of the Court of Justice of Paraíba (TJ-PB) has issued a ruling on Unimed-João Pessoa to compensate a patient who was prevented from undergoing bariatric surgery by the health plan.
According to the operation, the patient filed a lawsuit after Unimed refused to cover the gastric bypass surgery. The health care provider, in his defense, claimed that the patient failed to comply with the 24-month grace period to cover pre-existing illnesses.
When analyzing the records, Judge João Battista Barbosa summoned and highlighted that it was up to the health operator to comply with the terms of the contract. He noted that “in this case, if the specialty includes an express contractual provision, Unimed can never exempt a procedure from its nature, on the basis of a pre-existing disease.”
Also according to the judge, the health fund must provide the service in return for cash from the member, and assist the user with medical and hospital services, under pain of prejudice to the good faith and social function of the contract.
He pointed out that “the assertion of a pre-existing disease is not worth accepting, because although it was mentioned in the nutrition report, being overweight since childhood does not mean saying obesity since then.” .
Thus, Barbosa set the compensation for pain and suffering at R$10,000 under the justification “It is not reasonable to admit that this refusal lies in mere dissatisfaction. The refusal smeared the plaintiff, because, despite his awareness of the need for surgery, she was prevented from performing it due to The only mistake UNAMID refused to make.”
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