If it doesn't provide the treatment, the plan must pay for a competing network, the judge decides

If it doesn't provide the treatment, the plan must pay for a competing network, the judge decides


The right to health

The grace period for HMO coverage for urgent and emergency cases must be a maximum of 24 hours, according to Law No. 9,656/98 12 35-C.

Judge orders operator to provide breast cancer treatment

This was the basis adopted by Judge Josias Nunes Vidal, of the 18th Civil Court of Fortaleza, to convict a health plan operator for providing treatment to a woman diagnosed with breast cancer and to compensate her for moral damages.

The judge also ordered a preliminary injunction of R$136,000 so that the company could pay for treatment in a competing private network if it did not have the necessary structure in its own network.

In the process, the author stated that she was diagnosed with breast cancer with a 95% chance of spreading to other organs in her body. She said the health plan rejected her application on the grounds that she was in a waiting period for Medicaid coverage.

In addition to the treatment recommended by the doctor, the author also requested that the worker be obligated to compensate for moral damages.

Analyzing the case, the judge stated that the requirements of expectation of protection were present – the possibility of the existence of the right, the risk of harm or the risk of the beneficial outcome of the operation. He also pointed out that the right to health has a constitutional provision.

“I consider that the good rights of the complainant and the risk of harm, because a delay in fulfilling such a request would pose a serious risk to the health of the patient, now the plaintiff. He noted that the initial need for the treatment requested by the plaintiff, a cancer patient, given the present situation of the complainant, is clear,” he noted. Failure to implement it at the present time may cause greater losses.

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Therefore, the operator was ordered to provide treatment for the author's breast cancer under penalty of a daily fine of R$1,000 with a maximum of R$20,000.

The author was represented by lawyers Frederico Cortez that it Erivelto Gonsalves.

Click here to read the decision
Process 0216439-23.2024.8.06.0001

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About the Author: Camelia Kirk

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