the Federal Chamber ruled in favor of a prepaid medicine firm

Audio note: Juani Zelaya

The Bahia Federal Court of Appeals revoked a first instance ruling that ordered a prepaid company to cover a gastric bypass for a young woman with obesity, arguing that the plaintiff was no longer a member when she filed an injunction against the mutual and a provider firm.
When appealing the decision of the Federal Court No. 1 of this city, the lawyer of the co-defendant Visitar SRL highlighted the “error” of the judge in considering that the indicated operation “should be included in the obligations” of the Mutual Association Sancor Salud, to which which the aforementioned company provides some benefits, among which is not the surgery in question.
The appellant complained that federal judge No. 1, Walter López da Silva, considered proven the “arbitrariness and illegality with which the right to health of the affiliate was restricted by the co-defendants, based on resolution 742/ 09 of the Ministry of Health, when it ignores these forecasts and concludes that it is not necessary to accredit them.
And he clarified that the woman (identified with the initials EYVB), instead of complying with current regulations, “falsified her affidavit to enter a social work that performs the required intervention illegally.”
The lawyer argued that it is “the law that imposes on the Ministry of Health the obligation to specify the necessary requirements to access benefits”, and that the plaintiff “preferred to file a judicial claim for an intervention for which she does not meet the requirements demanded by current regulations”.

Rejection of protection

The Federal Chamber upheld the appeals against the sentence and rejected the amparo action filed by the 25-year-old girl, who has a history of “clinically severe obesity of more than 5 years of evolution, with associated comorbidities.”
In mid-2020, the plaintiff had requested Sancor Salud to take over the coverage of a bariatric surgery consisting of “gastric bypass in Y de Roux by video laparoscopy”, including disposable materials, hospitalization and professional fees.
The woman asked that the company also cover the expenses for “pre- and post-surgical treatments indicated by the law on eating disorders.”
As a result of the request, the prepaid sent document letters to the amparista informing her that her plan had been terminated due to “falsification” in the affidavit, but that, due to her “contributions and contributions”, she would continue as an affiliate. to the Social Work of the Ministry of Economy (OSME).
In the record of her state of health, the applicant apparently omitted to record her pathology of obesity “without valid foundation.”
The AMSS also informed her that Visitar is also an OSME provider, which is why the plaintiff asked that company to cover the cost of the medical practice.
Given the lack of response, the girl once again demanded coverage of the surgical intervention from Sancor Salud.
Last year, Judge López da Silva admitted the amparo action and ordered Visitar and Sancor to cover the intervention, after considering the existence of what he called a “necessary passive joint venture between the defendants.”
However, now the Federal Chamber backed down and ruled in favor of the prepaid and the provider.

Foundations for change

Chambermaid Pablo Candisano Mera analyzed that the question to be elucidated consists of determining whether the coverage of the service indicated by the treating physician, Gabriel Egidi, corresponds to the AMSS and/or Visitar SRL.
At that point, it was found proven that at the time of filing the amparo, on November 30, 2020, the young woman was no longer affiliated with the AMSS and was aware of this situation, therefore it is not possible to “force” the defendant to pay the ” claimed health benefit.
According to the Chamber judge, there is no dispute that Visitar SRL is not a “social work or a prepaid medicine entity, but a mere health service provider to which said entities resort to outsource part of their obligations.”
“In other words, between the affiliate and Visitar there is no direct link, but rather the latter is only contractually committed to social work and prepaid medicine companies through an agreement with stipulations in favor of third parties (its affiliates),” Candisano said. Mere.

“In the case under analysis, the amparista establishes the responsibility of Visitar SRL based on its relationship as a provider of Asociación Mutual Sancor Salud. However, due to the non-existence of a current contractual relationship between the plaintiff and said entity, it is not possible to jointly transfer this burden to Visitar SRL”, he added.
For this reason, the protection against Visitar SRL was also rejected, but it was clarified that “what was resolved does not imply ignoring the plaintiff’s right to health care, as long as the claim is directed to the obligatory social work.”
Chamber judge Roberto Amabile adhered to the vote of his colleague Candisano Mera, for “substantially sharing the foundations and solution that he favors in the case.”

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