The Second Chamber of the Special Law of the Court of Justice of São Paulo (TJSP) rejected the preliminary appeal of São Francisco Sistemas de Saúde, founded by Hapvida, which objected to the withholding of R$600 from the health plan for the examination of a patient at risk of losing his sight. Judge Maria Salette Correia Dias, Rapporteur, recognized that “in the face of abusive operator rebellion, the seizure of assets was presented as the only means available to ensure compliance with the injunction.”
The patient developed secondary macular edema and needed to undergo an optical coherence tomography examination, which was refused by the health plan. She sued and asked the company to take the test.
In the first case, the measure was granted, as urgent relief, and the Health Trust was obligated to conduct the examination “without prejudice to the application of other penalties applicable in case of non-compliance, including withholding values to ensure the effectiveness of the court order.” The company violated the order.
In issuing an injunction halting the company’s funds, Mergulhao noted that “in many other cases where defendant São Francisco Sistemas da Said Sociedad Empresaria Limitada occupies the defendant’s side, it maintains the same position of ignoring court orders, despite fine increases He explained that the best measure to preserve the creditor’s health is to freeze the funds in order to pay the required exam.
The HMO submitted a preliminary appeal against the initial injunction and claimed that the decision was issued when the incident of provisional compliance with the decision had already begun. Confirm that the required test is not covered by the ANS List and that, although User Guide No. 69, Appendix II of RN 465, of the ANS specifies mandatory coverage of the test, there are requirements that the patient must not undertake to perform the procedure. The plan also indicated that there is no provision in the Civil Procedure Code (CPC) for appending as a coercive measure.
When analyzing the case, the rapporteur did not accept the HMO’s request. “The operator’s argument about the alleged taxation of Article 536 of the CPC did not work, which, on the contrary, provides for the possibility of the judge deciding on“ necessary measures to satisfy the creditor ”, in accordance with the above-mentioned capital. The article, also refers to the role of Only suggestive in the first paragraph, when the expression “among other measures” is used. In other words, the rules of procedure even allow the adoption of so-called “atypical measures” (among them withholding values), the relevance of which must be considered on a case-by-case basis ‘, he says.
Dias stressed that the seriousness of the patient’s health condition, who is at risk of losing her sight, is undeniable, “which makes the non-compliance with emergency protection by the operator acquire even more reprehensible features”, he noted and continued: “In light of the arbitrary operator’s rebellion, the reservation was introduced on assets as the only means available to ensure compliance with the injunction granted, which was later confirmed in a sentence.”
wanted by jotaHapvida has not commented until this report closes. The case is processed under the number 2000492-89.2022.8.26.0000.
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