Why healthcare has become a legal matter in Brazil

Ronaldo Rodrigues Alves Braga . Mar 22, 2019

Brazil’s 1988 Constitution was lauded for meeting progressive goals, awarding several social rights to minorities. However, in a country with major efficiency problems, it has proved impossible to fully meet these targets. That is particularly the case with public healthcare in Brazil. Although the country approved a law in 1999 to introduce generic drugs into the market, several high-cost medications are still inaccessible to many people. And that’s when the judicial system comes into the equation.

Every year, thousands of citizens sue the government asking it to pay for <a href="https://brazilian.report/power/2017/11/24/austerity-healthcare-farmacia-popular/">unaffordable drugs</a>. In 2015 alone, the state of São Paulo spent the equivalent of USD 323 million on such medications, after judges ruled in favor of the plaintiff in over 18,000 cases. Meanwhile, the overall number of cases reached 95,752 in 2017—a 130-percent increase since 2008, according to a new study by the National Justice Council. <hr /> <img loading="lazy" class="alignnone size-large wp-image-15028" src="https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB-1024x683.png" alt="Why healthcare has become a legal matter in Brazil" width="1024" height="683" srcset="https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB-1024x683.png 1024w, https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB-300x200.png 300w, https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB-768x512.png 768w, https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB-610x407.png 610w, https://brazilian.report/wp-content/uploads/2019/03/export-D2iaB.png 1200w" sizes="(max-width: 1024px) 100vw, 1024px" /> <hr /> The culture of resolving healthcare issues in court began in the late 1980s and built up steam in the following decade. Back then, the government led the process with the goal of making sure that HIV-positive patients could keep up with AIDS treatments. Over time, private citizens entered the battle—and the justice system began monitoring how government agencies execute health policies. In September 2016, the Supreme Court began to debate whether governments should cover the cost of high-priced medicines for citizens in need. They also discussed whether that right should be extended to drugs that have not yet been approved by Brazil’s health agencies. However, justices interrupted the trial before reaching a conclusion—meaning that things are unlikely to change anytime soon. Late last year, Federal Judge João Pedro Gebran Neto defended a more restricted coverage for high-cost drugs. “As an exercise of citizenship, the judicialization of healthcare should be directed at making public institutions fulfill their obligations—instead of seeking what is not guaranteed by the Constitution.” <h2>How lawsuits have made healthcare more expensive</h2> Roughly 80 percent of plaintiffs win their cases. In appeals, the success rate reaches 95 percent. With numbers[1] like these, an entire industry has been created, with dozens of NGOs financed with the sole purpose of filing class action lawsuits against the government. As most patients expect to win their cases, pharmaceutical companies have bumped up their prices. They follow a simple but perverse logic: if the state is going to pay, then they can charge as much as they like. Take insulin pumps, for example. A few decades ago, they would have cost almost as much as a small car. Pharmaceutical companies encouraged patients to file lawsuits against the government. Beyond money, two questions should be at the front-line of any debate on this issue. <ul> <li style="font-weight: 400;">How will the Supreme Court’s decision affect users of Brazil’s already-deficient public healthcare system?</li> <li style="font-weight: 400;">Is judicializing access to expensive drugs a way to ensure a right, or would it ultimately take that right away from citizens who can’t afford a lawyer?</li> </ul> Most drugs involved in lawsuits are used to treat some of the most common diseases, such as diabetes, hypertension, and cancer. This means that judicialization is not simply about rare diseases that demand expensive drugs. Ultimately, it reveals a weakness in Brazil’s public healthcare system. <hr /> [1] <a href="http://www.direitoepobreza.com.br/">Source: Grupo Direito e Pobreza</a>

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Ronaldo Rodrigues Alves Braga

Ronaldo has worked with the Law and Poverty Group, at the University of Sao Paulo, and as a pro bono researcher in the PGLaw office. He also studied Political Science and International Relations at Sciences Po Paris.

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Ronaldo Rodrigues Alves Braga