ORIGINAL ARTICLE
Private health insurance coverage-related lawsuits
Ações judiciais relacionadas às coberturas assistenciais na saúde suplementar
Acciones judiciales relacionadas con la cobertura de prestaciones en la salud complementaria
ABSTRACT
Ana Beatriz Perez AfonsoI
ORCID: 0000-0002-7958-4111
Mayra Gonçalves MeneguetiI
ORCID: 0000-0001-7955-4484
Thamiris Ricci de AraújoI
ORCID: 0000-0003-4571-9855
Lucieli Dias Pedreschi ChavesI
ORCID: 0000-0002-8730-2815
Ana Maria LausI
Objectives: to analyze lawsuits brought by beneficiaries of health insurance operators.
Methods: this was a cross-sectional descriptive study carried out in a large-capacity private
health insurance operator using data collected by the company from 2012 to 2015. Results:
ninety-six lawsuits were brought by 86 beneficiaries regarding medical procedures (38.5%),
treatments (26.1%), examinations (14.6%), medications (9.4%), home care (6.2%), and other
types of hospitalization (5.2%). The procedures with the highest number of lawsuits were
percutaneous rhizotomy; chemotherapy; treatment-related positron-emission tomography
scans; and for medications relative to antineoplastic and Hepatitis C treatment. Conclusions:
the lawsuits were filed because of the operators’ refusal to comply with items not established
in contracts or not regulated and authorized by the Brazilian National Regulatory Agency for
Private Health Insurance and Plans, refusals considered unfounded.
Descriptors: Judicial Decisions; Right to Health; Supplemental Health; Health’s Judicialization;
Health.
ORCID: 0000-0002-6339-0224
RESUMO
I
Universidade de São Paulo. Ribeirão Preto, São Paulo, Brazil.
How to cite this article:
Afonso ABP, Menegueti MG, Araújo TR, Chaves LDP,
Laus AM. Private health insurance coverage-related
lawsuits. Rev Bras Enferm. 2020;73(3):e20180748.
doi: http://dx.doi.org/10.1590/0034-7167-2018-0748
Corresponding author:
Ana Maria Laus
E-mail: analaus@eerp.usp.br
Objetivos: analisar as ações judiciais demandadas por beneficiários de uma operadora de plano
de saúde. Métodos: estudo descritivo de corte transversal desenvolvido em uma operadora de
plano privado de saúde de grande porte, utilizando dados compilados pela empresa no período
de 2012 a 2015. Resultados: foram movidas 96 ações judiciais por 86 beneficiários, referentes
a procedimentos médicos (38,5%), tratamentos (26,1%), exames (14,6%), medicamentos
(9,4%), Home Care (6,2%) e 5,2% a outros tipos de internações. O maior número de ações
dentre os procedimentos foi rizotomia percutânea; para tratamentos, a quimioterapia; exames
solicitados de tomografia por emissão de pósitrons; para medicamentos, os antineoplásicos e
para tratamento de Hepatite C. Conclusões: a razão para as demandas judiciais impetradas foi a
negativa da operadora em atender os itens não pertencentes ao escopo do que foi contratado
pelo beneficiário ou itens não regulamentados e autorizados pela Agência Nacional de Saúde
Suplementar, portanto sendo consideradas improcedentes.
Descritores: Decisões Judiciais; Direito à Saúde; Saúde Suplementar; Judicialização da Saúde;
Saúde.
RESUMEN
EDITOR IN CHIEF: Dulce Aparecida Barbosa
ASSOCIATE EDITOR: Alexandre Balsanelli
Submission: 09-21-2018
Approval: 04-30-2019
http://dx.doi.org/10.1590/0034-7167-2018-0748
Objetivos: analizar las acciones judiciales iniciadas por beneficiarios de planes de salud de
prepago. Métodos: estudio descriptivo, transversal, desarrollado en importante operadora de
planes de salud de prepago, utilizando datos recopilados por la empresa entre 2015 y 2015.
Resultados: fueron impulsadas 96 acciones judiciales por parte de 86 beneficiarios, referentes
a procedimientos médicos (38,5%), tratamientos (26,1%), estudios (14,6%), medicación
(9,4%), Home Care (6,2%) y 5,2% por otros tipos de internación. La mayoría de acciones por
procedimientos correspondió a rizotomía percutánea; en tratamientos, a quimioterapia; en
estudios, a tomografía por emisión de positrones; en medicamentos, a antineoplásicos y para
tratar la hepatitis C. Conclusiones: motivaron las acciones judiciales interpuestas la negativa
de la operadora de planes de salud a cubrir prestaciones no incluidas en el alcance del plan
contratado por el beneficiario, así como asuntos no reglados y autorizados por la Agencia
Nacional de Salud Complementaria, considerándose, en consecuencia, improcedentes.
Descriptores: Decisiones Judiciales; Derecho a la Salud; Salud Complementaria; Judicialización
de la Salud; Salud.
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INTRODUCTION
The relationship between law and health care is a great challenge for the future of healthcare systems in Brazil and worldwide.
Considering that the healthcare sector requires ongoing regulation
to deal with market flaws, the Judiciary becomes, par excellence,
the field for solving conflicts between needs, imposed rights, and
public and private healthcare institutions(1).
Based on a context of scarce resources, increased life expectancy, and spread of diseases, it is a challenge for public powers
to effectively implement the right to health, thus encouraging
lawsuits that compel governments to supply health-related
goods and services(2).
Both supplemental health and public system face problems,
and lawsuits brought by beneficiaries of health insurance plans
demanding coverage, decreased waiting periods, unilateral terminations, and unlimited hospitalizations are frequent, impacting
the Judiciary(3-4).
Health judicialization generates tension among different
interests and represents a possibility for claims from citizens
and institutions to ensure rights established by national and
international legislation(5). The Judiciary is the path to establish
the right to health relative to individual demands for hospital
medications, devices, and supplies. The expression “health’s
judicialization” generally refers to the phenomenon in which
political and social decisions regarding health care are transferred
from the Legislative and Executive branches to the Judiciary(6).
The aim of studies about lawsuits involving coverage restrictions
is to present elements to improve the regulations and practices
of a sector that has a great impact on the funding and operation
of the Brazilian healthcare system(7).
One immediate consequence of such lawsuits is the use of
unexpected economic resources that have to be quickly allocated
to comply with court orders specifically issued for this purpose(8).
The judicialization of health is a multi-faceted phenomenon
that involves political, social, ethical, and sanitary aspects that
go far beyond its legal component and the management of
public services. If on one hand, a large portion of the budget is
allocated to meet specific needs of a few patients, on the other
hand, it may represent the only solution to improve, prolong,
or save lives. However, judicial orders are not always based on
clinical healthcare protocols or evidence that ensures efficiency
and cost-benefit ratio. Assessment and control of the use of new
technologies are a key aspect to establish whether to authorize
the inclusion of new procedures, therapies, examinations, technologies, and medications(1).
The literature on the topic is often directed toward the analysis of the problem in the Brazilian Unified Health System, with
emphasis on the supply of medications. However, there is a lack
of knowledge production about lawsuits and health insurance
plans(3,9).
Studies that analyze the volume and objects of requests, as
well as their economic burden can contribute to knowledge
about and assessment of the impact of this phenomenon on the
private healthcare sector. This scenario served as the basis of the
present study, justified by the lack of information on the theme,
given the current judicialization of health care.
OBJECTIVES
To analyze lawsuits brought by beneficiaries of health insurance operators.
METHODS
Ethical aspects
The present study was approved by the Research Ethics
Committee of the College of Nursing of Ribeirão Preto at the
University of São Paulo and the investigated health insurance
operator, meeting the ethical requirements set forth by resolution
466/2012, under Certificate of Presentation for Ethical Appraisal
(CAAE) protocol no. 46577015.6.0000.5393.
Study design, setting, and period
This was a quantitative cross-sectional study carried out in a health
insurance operator that belongs to a cooperative system considered
the world’s largest medical work cooperative system and the largest
medical healthcare network in Brazil, present in 84% of the national
territory. The system is currently made up of 346 medical cooperatives
that provide care to more than 18 million beneficiaries nationwide.
It also owns 37% of the national health insurance market, with 120
thousand beneficiaries, an accredited network of 17 hospitals and
specialized clinics, its own hospital, and 926 physicians.
Sample, inclusion and exclusion criteria
The present study analyzed 158 lawsuits filed against the
health insurance operator from June 2012 to June 2015. Of these,
62 preliminary injunctions of beneficiaries from other operators
for compliance by the investigated operator, maintenance of
health insurance plans, adjustments, medical evidence, name
withdrawal from Serasa (Brazilian credit research company), and
exemption from waiting periods, were excluded. The inclusion
criterion referred to lawsuits brought by beneficiaries of the
investigated operator regarding healthcare coverage.
Data collection
Data collection was carried out using an instrument prepared
specifically for the study, containing information about the patient’s
characteristics (age, gender, city of residence, marital status, type of
insurance plan, active beneficiary or not), type of request (hospitalizations, medications, specific medical procedures, medical hospital
materials, orthoses, prostheses, and treatments without coverage by
the minimum mandatory coverage list of procedures stipulated by
the Brazilian National Regulatory Agency for Private Health Insurance
and Plans [ANS]), and the outcome of these preliminary injunctions.
The data were obtained from the digitized document filing system
kept by the company’s legal department.
Analysis of the results and statistics
Quantitative analysis of the data was run using the Epi-info
6 program.
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RESULTS
Other types of hospitalizations
5
6
Home Care
Ninety-six health insurance coverage-related lawsuits
were identified, of which 40% (n=38) were relative to
9
Medications
business plans, followed by individual/family plans with
14
Tests
31% (n=30), and collective plans with 29% (n=28). In the
25
Treatments
three years investigated, 27 lawsuits were filed in the
first year, 35 in the second year, and 34 in the third year.
37
Medical procedures
Of the beneficiaries (n=86) who brought the lawsuits,
0
5
10
15
20
25
30
35
40
50% (n= 43) were women, 45.2% (n=39) were aged beLawsuits
tween 51 and 80 years, 56.8% (n=49) were single, and
Figure 1 - Distribution of lawsuits (n=96) regarding health care coverage according
58.9% (n=51) resided in the region where the health
to reason, Ribeirão Preto, São Paulo, 2015
insurance operator was located. Moreover, 9% (n=8) of
the beneficiaries brought more
than one lawsuit, and two preliminary injunctions mentioned
1
Percutaneous aortic valve replacement
two beneficiaries.
1
Catheter valve implantation
The objects of the lawsuits were
grouped by similarity and are pre1
Corneal collagen cross-linking
sented in Figure 1. The alleged
1
Surgeries with orthoses, prostheses, and special materials
reason for refusing to comply with
the lawsuits was that the objects
1
Exome sequencing
were not included in the minimum
Revascularization
1
mandatory coverage list of procedures established by the ANS.
Surgery under neuronavigation
1
The most frequent items in
each group were specified to
Surgery and negative pressure dressing
1
help understand the analysis
1
Laser therapy
carried out in each one of them.
Of the 96 lawsuits, the most
Decompression and minimally invasive arthrodesis
1
prevalent category was medical
1
Arthrodesis
procedures, with 38.5% (n=37).
Figure 2 presents the number of
1
Radiofrequency ablation of transplanted kidney
lawsuits filed according to medical
2
Tumor removal surgery
procedure. Of these 37 procedures that composed this group,
Endovascular correction with stent
2
27% (n=10) referred to percuta2
Bone-anchored hearing aid surgery
neous rhizotomy. Although this
procedure is included in the ANS
2
Bariatric surgery
list, its guidelines are regulated
2
Cryoablation
according to assessment criteria,
made available only to patients
5
Unspecified procedures
with lumbar facet syndrome.
Of the 96 lawsuits, 26.1% (n=25)
Percutaneous rhizotomy
10
referred to treatment refusals, and
0
2
4
6
8
10
12
chemotherapy was the most comLawsuits
mon, with 44% (n=11), as presented in Table 1. The reasons for
Figure 2 – Number of lawsuits filed according to medical procedure requested, Ribeirão Preto, São
Paulo, 2015
refusals of preliminary injunctions
mostly referred to treatments in
non-accredited services, with 55%
(n=6). Other reasons corresponded to procedures not covered by with 50% (n=7), whose reason for refusal was the non-coverage
the ANS list, with 18% (n= 2), non-regulated plans, with 9% (n=1), of the procedure in the ANS list at the time of the request.
Medication supply corresponded to 9.4% (n=9) of the total
defaulting beneficiaries, with 9% (n=1), and beneficiaries in waiting
number of lawsuits. Most requests were of antineoplastic drugs,
period, with 9% (n=1).
Of the total number of lawsuits, 14.6% (n=14) referred to tests, with 56% (n=5), and medications for hepatitis C treatment, with
as shown in Table 2. Positron-emission tomography stood out 44% (n=4). The reason for refusal for antineoplastic drugs was the
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absence of its registry in the Brazilian National Health Surveillance
Agency (ANVISA, as per its acronym in Portuguese) at the time
of the preliminary injunctions.
Table 1 – Number of lawsuits filed according to treatment requested,
Ribeirão Preto, São Paulo, 2015
TREATMENTS REQUESTED
N
%
Chemotherapy
Intensity-modulated radiation therapy (IMRT)
Intravitreal corneal injection
TheraSuit physical therapy method
Chemotherapy and radiation therapy
Psychological treatment
Conformal radiation therapy
Total
11
7
3
1
1
1
1
25
44
28
12
04
04
04
04
100%
Table 2 – Number of lawsuits filed according to treatment requested,
Ribeirão Preto, São Paulo, 2015
EXAMINATIONS REQUESTED
N
%
Positron-emission tomography
Optical coherence tomography (OCT)
Radiofrequency ablation of celiac plexus
Factor V Leiden and prothrombin gene mutation
Liver ultrasound hormone dosage
Neuraxis magnetic resonance image
Unspecified test
Total
07
02
01
01
01
01
01
14
50
15
07
07
07
07
07
100%
Home care services represented 6.2% (n=6) of the total number
of lawsuits, and the requests contested 12/24 hours nursing care
and specific care, such as physical therapy, speech therapy, equipment, and supplies. In these cases, the health insurance operator
alleged that this type of service was not provided for in the contracts.
Last, in lawsuits filed for other types of hospital admissions,
such as psychiatric and intensive care units, corresponded to
5.2% (n=5), and were refused on the grounds of the institution
belonging to a “non-accredited network”.
DISCUSSION
There is an increasing demand of healthcare-related lawsuits,
both in the public and private sector. Effectiveness of health care
is sought through its judicialization, by means of court orders that
sentence service providers to assist users in what is understood
as correct(10).
The number of lawsuits in the three years analyzed presented
a linear trend. Currently, there are no scientific data in the country regarding the number of lawsuits brought by beneficiaries,
especially those in the private healthcare sector. A study carried
out in a high-management entity that catalogued all lawsuits
according to Brazilian state, regardless of its object, found 3.569
health insurance coverage-related lawsuits for a population of
681,000 beneficiaries(11).
Since the establishment of the ANS in 2000, its list has undergone regular reviews to ensure the inclusion of new medical
procedures and technologies due to the evolution of medicine
and care practices(12).
The direct cost of the use of new technologies and savings
due to prevented procedures must be considered, in spite of
the lack of tools that allow for a prospective assessment of the
impact of this incorporation(13).
In this scenario, it is necessary to discuss the financial figures
regarding lawsuits to enable the analyses of this financial balance
in operating revenues and their inclusion in annual budgets. In
the health judicialization context, it is important to identify this
demand and the reasons given by service providers to refuse
coverage, in order to better understand these reasons. Implementing budgetary projections based on the profile of these
beneficiaries could improve the performance of indicators, as
well as the restructuring of health insurance coverage.
In the private healthcare sector, by recommendation of the ANS,
health insurance coverage is established by contract. However, this
conflicts with the Judiciary’s understanding that health insurance
operators must comply with what the beneficiaries and the Judiciary
understand as correct and then can seek preliminary injunction
reversal only after approving the procedures to avoid paying fines(14).
This phenomenon has been called interlocutory relief, in
which the only court criterion for the conceding preliminary
injunctions is the confirmation of beneficiaries’ need for urgent
access to procedures(9).
Court sentences require both maximum urgency and careful
assessment. These decisions are at the charge of those who have
the duty to decide; however, they do not necessarily have specific
knowledge on the theme.
International studies also show controversial court sentences
for new interventions made under uncertainty, which may not
only cause harm to patients, but prove ineffective, possibly incurring unnecessary increase in care costs. It is essential to introduce
assessment systems of new technologies to provide information
to those responsible for decision making. Basic discussions about
evidence-based medicine and its assumptions are also necessary. Therefore, establishing technically correct methods and
developing preemptive care guidelines can be some of the few
sustainable strategies available to health insurance operators to
question unbridled and not always critical demands(15).
In Brazil, an original and growing initiative has emerged to overcome the consequences of court interpretations, which establishes
technical assistance center for health-related lawsuits (NAT, as per
its acronym in Portuguese). Because the topic requires technical
and specific knowledge for decision making, these centers provide
the Judiciary with assistance to address the population’s demands.
These centers provide multidisciplinary professionals such as physicians, pharmacists, nurses, nutritionists, and managers, enabling
technical support to better analyze lawsuit requests(12).
The present study, showed that the most prevalent requests
present in lawsuits referred to medical procedures, with 38.5%
(n=37), corroborating a study carried out in a self-management
entity, where this was also the main request (31.4%)(9).
However, studies about the judicialization of health care in the
public sector, especially in the Brazilian Unified Health System
(SUS, as per its acronym in Portuguese), show that the most
prevalent demand is for medications, representing 29.6% of the
requests(14). The findings of this study showed that in the health
insurance operator (part of the private system), medications
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represented 9.4% of the lawsuits, or the fourth most common
reason indicated by beneficiaries.
A systematic review of the international literature about the use
of judicial procedures to provide medication showed that these
are the most significant object of lawsuits, a reality specifically
characteristic of Brazil(16).
Studies carried out in the states of São Paulo, Santa Catarina,
and Minas Gerais identified that most of the lawsuits filed against
the SUS presented medical prescriptions from private healthcare
services, showing that these lawsuits had been filed by the higherincome population (17).
Additionally, it is worth mentioning the great heterogeneity
of healthcare service users, who present different needs according to their social, demographic, economic, and epidemiological
characteristics. This affects the demand for healthcare services in
different geographic regions. As a consequence, the mapping of
lawsuits can become a healthcare organization process(5).
Regarding types of treatment, chemotherapy was the most
requested (44%). This group included the preliminary injunctions
whose reasons presented by the beneficiaries mostly referred to
the option of undertaking treatment in a non-accredited service
in the city of São Paulo. Moreover, this group also included beneficiaries with plans that did not include this type of treatment,
but who had to request it because they needed it.
It is important to reflect on the desire of beneficiaries to receive
care in specialized services recognized as reference centers for
the treatment of their illnesses. In this case, health judicialization has become a means of access, pointing to quite different
individual needs(18).
In terms of tests, although positron-emission tomography is no
longer a new technology and several studies have been carried
out to justify or increase its use in different areas and disorders,
the ANS has a restricted set of indications which must be considered. In these decisions, the inclusion of health technologies
prevails, because reference studies require time and consistent
methodology and are at a slower rate than their actual use by
the medical community, thus generating conflicts(11).
Home care in the private health sector is neither part of the
minimum mandatory coverage list of procedures nor regulated
by the ANS; however, health insurance operators can choose
to provide this service, establishing their own inclusion criteria
for users of healthcare programs, being offered as a “benefit”(5).
Health insurance operators that choose to provide this healthcare
modality are only subject to regulation by ANVISA, by means
of the Resolution of the Collegiate Board of Directors (RDC)(19),
which specifies organizational aspects of home care, although it
does not establish contracting criteria or regulation mechanisms.
Refusal of treatment by health insurance plans has become common, supported by arguments of non-inclusion by the minimum
mandatory coverage list of procedures required by the ANS, such
as home care, which is financed by health insurance operators(9).
Regarding other types of hospitalization, lawsuits brought
by health insurance beneficiaries contesting coverage, reduction in waiting periods, unilateral terminations, and unlimited
hospitalizations. This is an example of a dispute involving the
right to access, limitations set by healthcare regulations, and the
absence of clear criteria for technology incorporation(3).
The findings of this study identified that the care provision
refusals of the health insurance operator that led to lawsuits
were based on the absence of contractual coverage, because
the object was not present in the minimum mandatory coverage
list of procedures of the ANS: request of non-accredited services;
medications without appropriate regulation by the ANVISA; and
services not provided for in established contracts.
The provision of healthcare services by health insurance operators involves very clear contractual relationships, rights, and
duties from both parts.
Since its establishment, the ANS has regulated the healthcare sector in its various fields of practice, such as by defining coverage rules
of a reference healthcare plan, establishing a minimum mandatory
coverage list of procedures, and defining operating parameters for
health insurance operators and the accredited network(12).
Health insurance plans are faced with the challenge of providing the minimum mandatory coverage list of procedures to their
beneficiaries. They must also regulate the incorporation of new
treatments that emerge at a quick pace, resulting in considerable
economic impact on operators(9).
The list of procedures is updated every two years to include
and exclude items, thus allowing the adoption of new technologies. However, these updates are not always based on feasibility studies to assess the increased costs incurred by these new
technologies(12).
Study limitations
This study was carried out with a single health insurance operator, which does not allow for generalizations to other contexts.
Also, the financial impact of refusals on the health insurance
operator could not be verified.
Contributions to the nursing, healthcare, or public policy
areas
The judicialization of health care is a recurrent theme in the
public sphere and has been included in many discussions, although
with little mention to the private segment.
However, in many situations, the Judiciary has been criticized
for interfering with the healthcare area, disregarding established
norms and management policies, and enforcing laws based on
the right to life. Even though health is priceless, it is an important
asset that comes with a cost.
The financial burden of the judicialization of health care,
both in the public and private healthcare system, should alert
managers to create specific areas to analyze and follow up on
these lawsuits, considering that, in the present study, the same
beneficiaries resorted to the Judiciary more than once. Financial
expenses with preliminary injunctions are not fixed costs that
health insurance operators are able to measure. Thus, it is of utmost importance that operators manage expenses and reserves
for these purposes.
The private health segment is subject to great conflict because
it requires supervision from the ANS, which in turn has been
improving the follow-up and assessment system of the care
provided by health insurance operators to their beneficiaries.
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In this respect, assessment processes are highly valuable to the
operation of systems, and audits are systematic assessments in
which nurses can participate as part of the team, representing an
important job opportunity. There has been a significant increase
in the number of nurses working for healthcare operators in the
insurance-health segment and medical-hospital healthcare plans.
The audit areas of healthcare institutions, both public and
private, must address the judicialization of health care on a
daily basis. Audits, lawsuit management, current legislation, ANS
regulations, and knowledge about hospital billing practices are
factors that permeate the basis of lawsuits, and, therefore, must
be included in the work knowledge of nurses in this specific area.
It is necessary to learn about the reasons behind the lawsuits
brought by beneficiaries; however, auditors must be technically
and legally prepared, evaluating requests based on evidencebased practices.
The issue of health judicialization is far from reaching a shortterm resolution, and discussions about the financial effects of
this process must be considered.
In this respect, there is a prevalence of investigations about
the public healthcare system. This shows the importance of the
present study, which analyzes the private system and allows for
a broader discussion about the effects of health judicialization
on the reality of the health insurance operator investigated,
including its limits and responsibilities.
CONCLUSIONS
The analysis of the lawsuits brought by beneficiaries of the
investigated health insurance operator showed that the requests
were not provided for in contracts or not part of the items regulated and authorized by the ANS, thus considered unfounded.
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