Brazilian States Strive to Block Legal Process Used by Patients to Obtain Unsubsidised Medicines

According to the Valor Econômico newspaper, two of the states at the forefront of this move include São Paulo and Rio de Janeiro. In São Paulo, the public defence attorney is trying to reach an agreement with the Secretary of State to regulate the provision of medicines and to avoid judicial processes. Meanwhile, in Rio de Janeiro the state attorney has begun a study in order to define criteria for the provision of drugs and medical treatments.

In connection with this, lawyers acting for Rio de Janeiro's state attorney have been studying isolated cases where courts have ruled in favour of an individual state and have refused petitions made by patients. In one such case, which involved a patient from Rio Grande do Norte, the Supreme Federal Tribunal (STF) ruled that the patient was not entitled to a high cost medicine, because such a concession would prejudice healthcare services offered to the wider public.

In particular, lawyers acting for Rio de Janeiro are trying to establish guidelines which will be proposed to magistrates, which would determine criteria for providing drugs not included on the SUS's subsidised list. At the same time, they are seeking to prioritise domestically manufactured drugs and generics.

Another proposal is that the defendant in the legal cases should be the federal body—whether at national, state or municipal level—that declined to include the petitioned drug on its list. At present simultaneous petitions are often made to more than one body, which results in a waste of time and resources.

Patient Lawsuits Carry High Financial Costs

In 2007 alone, São Paulo spent 400 million reais (US$239 million) on defending approximately 25,000 lawsuits that were brought against it, which represents a 25% increase on the previous year's expenditure. A large proportion of the expenditure was related to disputes arising from drugs and treatments that are not subsidised by the SUS. Meanwhile, in Rio de Janeiro judicial cases account for around 20% of the healthcare budget.

Complying with judicial decisions has destabilised the financial system of many states, and has caused blockages in the healthcare budget.

Outlook and Implications

The growing number of legal disputes brought by patients often end up coming before the Supreme Federal Tribunal (STF) and the Superior Justice Tribunal (STJ), and both of these courts normally rule in favour of the patient. In practice, judges normally rule that healthcare is a constitutional right, although exceptions are sometimes made when the patient is not in danger of dying.

In a recent high profile case, a judge ruled that Mato Grosso state had to provide a patient with Roche's (Switzerland) breast cancer drug Herceptin (trastuzumab), or else face a fine of 500 reais per day (see Brazil: 22 January 2008: Judge Rules that Unlisted Drug Herceptin Must be Provided in Brazil). Ironically, in many cases the unsubsidised drug is actually prescribed by a public sector doctor.

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