Operators cannot exclude certain treatment when indispensable to the insured's health, as the health plan may limit the diseases to be covered, not the procedures, tests and techniques necessary to treat the disease included in the list of coverage.
Judge Leandro Borges de Figueiredo of the 8th Civil Court of Brasilia understood this by condemning a health insurance company to indemnify a patient for having denied the provision of medication considered essential for her treatment. The repair was set at $ 10,000. In addition, the magistrate ordered the carrier to provide the medicine prescribed by the plaintiff's doctors.
"Since the disease that affects the author (cancer) is excluded from coverage, it is not up to the health plan to choose the best treatment, which is up to the attending physician. In addition, the contractual clause that excludes drugs is abusive. Thus, the defendant has the obligation to pay for treatment with the drugs recommended to the plaintiff, under the terms prescribed in the medical report, which does not constitute a violation of the ANS Resolution and the contract (article 757 of the CC), "he said.
In judging the case, the magistrate pointed out that the relationship between the parties is civil and that, regardless of the discussion as to the incidence or not of the Consumer Protection Code, it is not for the health plan to refuse coverage to the most appropriate treatment to the patient. He also stressed the pacified understanding of the Superior Court of Justice is that operators cannot exclude certain treatment when indispensable to the health of the insured.
For the judge, the defendant's argument that the drug recommended to the author is excluded from the list of ANS cannot be accepted, since the list “is not exhaustive but exemplary, and the fact that the drug is not on the list the defendant's mandatory coverage does not exempt her from providing the treatment prescribed by the patient's oncologist. ” With information from the press office of the TJ-DF.