Why would you not file a lawsuit? Incentives, problems and proposals related to healthcare litigation

Abstract

The filing of individual claims in order to obtain the most diverse health benefits, based directly on the constitutional provision on the fundamental right to health, is a frequent and growing phenomenon in Brazil. The general judicial understanding related to the constitutional right to health seems to be quite broad. However, the Constitution do not specify the exact content of the right to health, nor define what health benefits should necessarily be provided by the Administration. This article intends to demonstrate that there are several incentives for the massive filing of such lawsuits, and that the main one is the dominant understanding adopted by the Judiciary. In this scenario, the Judiciary tends to become an even more relevant actor for the allocation of public resources in the area, through its own criteria. This situation raises problems and criticisms of at least three orders: violation of isonomy; inefficiency of the allocation of resources; and consolidation of the Rule of Law. In this sense, some proposals are presented, which involves, in summary, preference for collective procedures; deference to the technical analysis of Conitec; and judicial provision of unincorporated benefits occurring only in exceptional situations, after thorough procedural instruction.

raises problems and criticisms of at least three orders: violation of isonomy; inefficiency of the allocation of resources; and consolidation of the Rule of Law. In this sense, some proposals are presented, which involves, in summary, preference for collective procedures; deference to the technical analysis of Conitec; and judicial provision of unincorporated benefits occurring only in exceptional situations, after thorough procedural instruction.