2023-05-01 01:23:00
The Superior Court of Justice of Río Negro validated that a doctor, who is not an Ipross provider, prescribes or indicates medical studies to a Affiliate of the social work of the Rio Negro state. The ruling introduces a wedge into the regulations that Ipross applied, since did not authorize studies requested by professionals outside the list of providers.
In a divided ruling, which they handed down on April 26, the judges of the STJ Cecilia Criado and Liliana Piccinini and their counterpart Ricardo Apcarian voted to confirm the judgment of the First Chamber of Labor of Bariloche, which had admitted last December an amparo action from an Ipross affiliate who demanded the coverage of some studies indicated by his doctor who ceased to be a provider of social work.
LThe majority of the province’s highest court rejected the appeal filed by the State Prosecutor’s Office against the ruling of the Bariloche Chamber of Labor that, by admitting the amparo, it ordered Ipross to authorize the studies indicated by the amparo’s treating physician through his providers within a period of five days, under penalty of seizure and to forward the records to the Prosecutor’s Office on duty for disobedience of a court order.
The representative of the State Prosecutor’s Office requested that the appeal be admitted and the contested decision be revoked, “because it was arbitrary and violates the principle of division of powers and the regulations that govern the body under action.”
He argued that the circumstances that made the action admissible did not exist, “given that there was no rejection of coverage by Ipross and the right to health of the amparista has sufficient protection.
He stressed that when responding to the report, the State Contracting Regime and the list of professionals in the required specialty were indicated, to which the plaintiff could resort.
He argued that the ruling of the Bariloche Chamber of Labor contradicted the legal doctrine of the STJ “on the matter” by ordering the social work “to require the card doctors to prescribe the studies indicated by the treating professional who does not belong to the social work, without seeing the patient.”
The Prosecutor aligned with the official position
The Attorney General, Jorge Crespo, aligned himself with the State Prosecutor’s Office and postulated that the appeal be admitted. He understood that due to the doctor’s withdrawal as a service provider, Ipross had provided the member with a proposal for medical providers related to his ailment who could prescribe the studies requested for the routine annual control required by the disease.
“It is not possible to affirm that the intervention of the intended professional -outside the primer- is essential for the adequate care of the pathology”, maintained Crespo in his opinion. He considered that the social work guarantees assistance and coverage, for which reason there is no evidence of an injury to the interests of constitutional protection.
However, Apcarian, Criado and Piccinini raised another criterion. “The contested sentence refers to the need for the required studies and the performance of the treating professional until July 2022,” they recalled.
“Likewise, that the medical audit did not question the indicated benefits or ignore the diagnosis of the amparist, but rather rejected the prescription because Dr. Sandoval ceased to belong to the Ipross card on July 1, 2022 ”, they highlighted.
excessive formality
“The requirement to go to the proposed specialists to prescribe said studies and thus obtain the authorization of coverage according to the current benefit nomenclature configures an excessive formality that arbitrarily restricts the member’s right to health”, they warned.
“Even more, if it is taken into account that the professional who indicated the practices diagnosed the disease in 2017, performed the surgery and continued with the relevant controls as an Ipross provider until July 2022 and the orders date from October 1, 2022”, they pointed out.
They observed that The solution adopted by the STJ in the precedent “Sánchez” (a sentence that was handed down in 2018) and that the minority judges Sergio Barotto and Sergio Ceci invoked is not applicable to this case.who voted to admit the appeal of the State Prosecutor’s Office and revoke the sentence of the Chamber of Labor of Bariloche.
Criado, Piccinini and Apcarian recalled that in the “Sánchez” case, the practice requested “was not in the Ipross benefits nomenclator and the professional chosen did not belong to the primer; while in these proceedings, the sentence orders the social work “…to authorize the two studies required by the amparista’s treating physician through his medical providers…”
“For the foregoing, the arbitrary conduct of the Tribunal is not noted, since it does not oblige the social work to require the charter doctors to order the studies requested by the treating professional outside of it without seeing the patient; reason for which said grievance must be dismissed ”, they affirmed.
The posture of Barotto y Ceci
Barotto and Ceci maintained that from the report and documentary submitted by Ipross, it appears that “theThe medical requests submitted in a timely manner for authorization (…) were indicated by a doctor outside the charter”.
They indicated that the urologist requested his removal from the list of Ipross providers as of July 1, 2022, and “that this circumstance was informed to the plaintiff by the local Delegation and that from the Coinsurance Sector it was explained to him that in the booklet there are professionals specializing in urology for the care of affiliates”.
“It is proven that the social work guarantees assistance and coverage, without evidence of an affectation of the right to health invoked in the sentence, attentive to the fact that the requested made available to the amparo a list of six (6) providers authorized to prescribe the requested practices, in order to access the coverage requested through this exceptional action; an issue that had been expressly brought to light by the social work and was ignored by the Court”, stated Barotto and Ceci.
“The plaintiff’s allegations without substantiation about the impossibility of changing doctors during the course of the disease and that” it is at stake [su] health and [su] life” considered in the judgment in crisis, do not constitute plausible reasons to reject the proposal made by Ipross nor do they make the amparo appropriate; especially when an urgent situation that justifies the petition does not arise from the aforementioned prescriptions, for which reason it is appropriate to admit the grievance that deals with the inadmissibility of the action”, Barotto and Ceci assured.
“The Court (of Bariloche) should have taken into account that the freedom of members in the choice of professional is not absolute, as long as it can only be exercised with respect to the providers contracted for this purpose by the Institute, as is clear from the applicable legal regime -Law K 2753, cited above-”, they emphasized.
They stressed that The system provided by Ipross “does not contemplate -in principle- the free choice of doctors and/or providersbut it is structured according to the professionals and institutions accredited before the social work for the attention of its affiliates”.
However, the majority of the STJ applied another criterion that opens a new door for Ipross affiliates.
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