Judicialização da saúde e Sistema Único de Saúde: estudo de caso de três tribunais brasileiros

Abstract

Court decisions are sought as a way to protect the social rights of citizens. The aim of the present study was to describe and compare records from three Brazilian courts in cases involving the public healthcare system and the results of these cases. A survey was made of the judgments listed on electronic sites of Justice Halls in states of Pernambuco, Rio Grande do Sul and Minas Gerais. A total of 558 judgments were analyzed. There was a greater frequency of ordinary cares (73.1%). In the majority of cases, it was not possible to it was not possible to identify the juridical representative of the defendant (54.5%). In those cases in which such identification was possible, a public defender was the most common (71.5%), with an even higher percentage in the state of Rio Grande do Sul (90.2%). The cases were predominantly individual in all three states. There were a large number of requests for injunctions (83.8%), which were nearly always deferred (91.2%), with the allegation of urgency/emergency in nearly the entirety of such cases (98.8%). The majority of decisions were favorable to the users of the public healthcare system (86.2%) in all three states, although a greater number of decisions favoring the public healthcare system or the user/public healthcare system were observed in the state of Minas Gerais (p<0.05). In most decisions, it was not possible to determine the economic-financial status of the plaintiff or representative of the defendant (69.1% and 54.5%, respectively). Diseases were classified based on the International Classification of Diseases. The distribution of diseases by claimants per local of origin of the court decision and demand was analyzed. Medications were classified based on their appearance or non-appearance on the Brazilian National List of Essential Medications, denominated RENAME. The chi-square test was employed to assess associations regarding the requests for medications (p<0.05). The most common diseases were related to the circulatory system (17.2%). The majority of demands were for medications (79.6%), most of which are not listed on the RENAME. The distribution of diseases/conditions varied among the different courts. Distribution in demands was unequal in relation to the diseases. There was greater demand for medications among cases with juridical representation involving a private attorney and among those founded on prescriptions issues by health professionals from the private sector. The legal argument most often used in decisions favorable to the users of the public healthcare system were the articles of the Constitution (Article 1, Section 5, Article 6-9, Article 198 to 203, Article 23) and specific laws of each state. The principles of law that underling most frequently the decisions were favorable to the users were the right to life, health and human dignity, and justifying the decisions favorable to SUS were existential minimum, reserve as possible, distributive, reasonableness and isonomy. The courts are sought as an alternative for access to healthcare services and there was a tendency on the part of the courts to grant these requests. However, differences in juridical stances are perceived among the courts analyzed. The impact of such decisions should be analyzed in depth and understood by both sides involved in the process (courts and public healthcare services) in order to avoid the aggravation of inequalities in the system.