III. Amparo for supplying drugs to a social work
Federal Court. Crim. No. 3, Mar del Plata, "Navas, Leandro c / Institute for Social Work Medical Care," LL 1991-D-79
1) Facts
The actor was a member of a social work by paying the contributions required by law. It is a forced agreement (Conf. Mosset Iturraspe, Jorge and Lorenzetti, Ricardo Luis, medical Contracts , La Rocca, Buenos Aires, 1991).
The actor suffers from chronic kidney failure end stage requiring dialysis coupled in turn to a severe chronic anemia should be compensated. This led to the need for transfusions desplasmatizados periodic red blood cells, a situation that diminished their quality of life by not making a proper physiological balance.
When you get the hormone erythropoietin, the anemia is corrected without further transfusions, and this allows for a significantly higher quality of life, avoiding the disadvantages described and the risks of disease transmission that contains any transfusion.
The actor requests the supply of the medication to the social. This answer yes and it comes with some of the cost borne by patients, for a time a few months, but then stopped.
The actor has put an appeal stating that he was denied medication and endangers their health.
2) court arguments
The court has several arguments.
The most important is that health is at stake, and it is an asset that has constitutional protection in our legal system. Deepening the issue, the court said:
is an illegal omission of the necessary means to make the preservation of health and quality of life of the appellant, which fits into the concept of "illegitimacy".
Secondly, it highlights the fact that it was a contract prevented plaintiff forced to choose an alternative social work that would give better services.
Thirdly, it considers that the reasons given by social work to suspend the provision of the drug are unfounded and not according to the guidelines of bioethics.
So the decision of the social work "must be disqualified to alter and threaten to arbitrariness and illegality the right to life and preservation of health, in terms of Article 1 of the 7166 Act."
We left for the final important argument the court quoted directly from the court of bioethics in the case said. It pointed out that the principle of beneficence makes the individual good and it collides with the distributive justice refers to the common good. The hidden reason for social work to stop the drug would be its cost and the inability to give to all who request it, and from this point of view "is no doubt that the principle of justice would prevail over that of charity."
however, said the committee was given as initial treatment and temporarily, his suspension would cause harm to the patient. Also, general justice collides with the principle of autonomy porque impide que el paciente pueda optar por el tratamiento que más le convenga.
La conclusión del comité es que deben primar los principios de autonomía y beneficencia sobre el de justicia, puesto que las consecuencias de aplicar el principio de justicia en primer término maximizarían las consecuencias negativas por sobre las positivas.
El tribunal agrega argumentos importantes a este análisis de las consecuencias. Dice que los presuntos déficits que tendría la obra social deberían ser cubiertos por el Estado, porque así lo dispone la ley. Asimismo, la relación costo-beneficio debe suponer comparar el costo del medicamento no sólo con la enfermedad today, but with other diseases that shrink the actor of not having the medicine.
concludes accepting the claim for defense and directing the social work to provide the drug.
IV. Pursuant to the provision of assistance
medical health insurance companies contract
To complete the picture, we will take the license to comment on a case decided that is not firm, but that poses problems as rich not resist the temptation to do so, omitting the data related to the cause and the court.
1) Facts
A person enters into a contract of prepaid medical services. Suffers a serious accident that leaves him comatose.
The actor, through a legal representative, presented an appeal requesting that the company health insurance companies to take over health care coverage, unlimited time and money. Notes that this is necessary because the borrower was notified of the termination of services, because there is no public hospital receiving the patient in those circumstances and because it is convenient to change of venue because of the risks related to their health.
Among the parties raises an interpretive problem contractual clauses. The company offered several plans, in accordance with which the actor had taken cover traffic accidents, and this was the basis of the claimant to seek attention indefinitely.
The company, meanwhile, argues that the case had a chronic disease and therefore an obligation to the PROVIDER had a time limit, pursuant to the plan subscribed.
Actually the fundamental problem is the high cost claimed that it has indefinitely maintain a patient in a coma and that this unbalance your finances. The
court answered this argument by noting that nothing prevents you from saving those expenses through legal action against the responsible recovery damaging event. It would then be merely a temporary assumption of economic risk.
court also notes that when arbitrarily inserted into the contractual stage an illegitimate threat of serious, irreversible and imminent harm to a constitutional right which by its nature appears as immediate production, the protection afforded by the shelter can not should be conditional on the use of ordinary judicial channels.
The ruling ordered the company concludes to restore health care, without setting any deadline.
V. Some conclusions
These failures raise issues of great complexity and exceeding the limits of this review jurisprudence. Will only focus on some essential aspects:
1) Presence of basic rules
The presence of fundamental rules becomes a corrective function of private autonomy and the law itself, as it opposed to it.
understand this fundamental rule which has its source in the Constitution, treaties or codes, and which is capable of an argument legally and fundamentally.
These rules are expressed through fundamental rights, institutional rules, principles and values.
In the cases listed first fundamental right: the right to health.
2) fundamental right to health and typing
The right to health is, according to World Health Organization, the complete physical, mental and spiritual. Is this the right to health constitutionally recognized?, "Should be forced to work or social private health insurance plans to keep the contract until the full collection of that goal?
this is an aspiration to make the law assumes a variety of ways. Some parts of that aspiration leaves aside for unreachable, the other leaves it to the market through the recruitment of health systems, others across the state provides, and there is a standard wants to ensure minimum.
The fundamental right is related to the minimum guarantee, with the primary. That is, when life is at stake, including both death and quality of life, and when no other alternative benefits and services.
Secondly, it is "inexcusable condition of the legitimate exercise of that right has claimed that the treatment efficiency for the purpose which motivates it" (SCJ "Baricalla of Cisilotto c / National Government, LL 1987-B-311 .) Be warned some imprecision in this aspect in some bugs.
is to ensure health as a primary and to a processing efficiency to solve the problem www.juridicokomisarski.com.ar
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