Intestinal Transplantation and lawsuits seeking to oblige the state to cover the costs

Lately, the question whether the state has an obligation to pay for treatments for rare diseases with serious health consequences has been much discussed.

Microvillus inclusion disease is an extremely serious inflammatory disease, whose sole treatment is intestinal transplantation, since the affected patients have a deficient protein absorption, and their sole source of nutrition are supplements for parenteral nutrition, which cause sever damages to the liver function.

Since they require the use of equipment, appliances, pharmaceuticals, and specific medical or surgical instruments and high precision as well as technical capabilities, the liver transplantations performed abroad have had the best results. We cite as an example, the Jackson Memorial Hospital in Miami, USA.

This hospital has a bank of organ donors, allowing for a greater likelihood of achieving compatibility between donor and recipient, which is very important given the possibility of transplant rejection and, consequently, the patient’s recovery.

Based on article 6 of the Federal Constitution, which establishes health as a social right of Brazilians and article 196, which orders the state to provide for health, by guaranteeing social and economic policies, which address the reduction of the risk of disease and other health problems, the universal and equal access to actions and services for its promotion, protection and recovery, suites have been filed which require the state to fully fund the treatment of intestine transplantations.

In fact, the majority of requests are filed by minors and concern the possibility of treatments with good survival chances and possibly cure, furthermore the nonperformance of such transplantations may cause a lot of suffering to the patients.

The state, in turn, argues that decisions favorable to the patients would cause a multiplier effect and, consequently, harm public health policies.

The interesting appeal by the Federal Prosecution, in the proceedings of case nº 0031349-11.2014.4.03.0000, with the Federal Regional Court of the 3rd region, promptly challenged the argument that the treatment would cause the state injury to the economic order, due to the multiplier effect.

Another of the state’s arguments, which was challenged, was that the above-mentioned decision would go against the basic rules of the national health care service (SUS) because it does not observe budgetary, chronological or other limitations.

The arguments of the Federal Prosecution concern the inexistence of the multiplier effect, since the intestinal transplantation arises in very rare diseases. Moreover, it would not contradict basic rules of the SUS, since there is no curative treatment in the country.
In addition, a favorable decision to fund the intestinal transplantation observers the existential minimum, which is the right to life and human dignity.
The decision rendered in the proceeding nº 0002609-37.2014.4.03.6113, transcribes insightfully a part of the interlocutory appeal n º 0008474-47.2014.4.03.0000/SP, of the Federal Regional Court – 3rd region, transcribed by the Appellate Judge – Dr. Márcio Moraes, which ensures that the right to life is classified as an inalienable individual right protected by the Federal Constitution, which must prevail over the financial interests of the state, as follows:

“(…) between protecting the inviolability of the right to life, which qualifies as an inalienable subjective right guaranteed by the Constitution of the Republic (art. 5 heading), or to let prevail over this fundamental right, a financial and secondary interest of the state, I understand – once this dilemma is set up – that reasons of the ethical and legal order, impose on the judge only one possible option: the indeclinable respect for life. Therefore, I dismiss the request by the State of Santa Catarina since the decision rendered by the Santa Catarina judiciary – far from characterizing a threat to the local public and administrative order, as stated by the state’s government (pages 29) – reflects in this case a worthy gesture of solidarity and reverent appreciation of the life of a minor, who belonging to a poor family does not have conditions to pay for the costs of the only medical and hospital treatment, capable of saving him from inevitable death.” (DJ. 13/2/1997)”.

Another relevant aspect of the judgements given in proceedings discussing the state’s obligation to fully cover the costs of intestinal transplantations, such as the one transcribed above, is that they shall be fully satisfactory, given the threat to the life of patients, if they do not receive the prescribed treatment, since it is understood that the state does not have an option to seek injunctive relief.

The decisions by the courts have highlighted the duty to grant satisfactory measures in the face of the state given the exceptional nature of an emergency situation:

“CIVIL PROCEEDURE. PROVISIONAL REMEDY. INJUNCTION OF SATISFACTORY CHARACTER. PUBLIC HEALTH. CITIZEN’S RIGHT AND DUTY OF THE STATE. DECISION BASED ON CONSTITUTIONAL PROVISIONS. APPEAL TO THE FEDERAL SUPERIOR COURT NOT GRANTED”.
(E. STJ – 1ª T. REsp 97.912/RS – Rapporteur: Garcia Vieira – Judgment on 27.11.1997)

Therefore, in the event of a threat to life, as occurs in cases where intestinal transplantations are prescribed, the jurisprudential understanding favors the granting of injunctive relief.

Maurício Gobbetti – Furriela Advogados