The role of the lawyer specializing in health law.
Health law is an extensive and extremely important area for dealing with health-related legal issues. As such, a lawyer specializing in health law understands the rights and responsibilities of medical professionals and health institutions, as well as the people who use their services, in order to prevent or defend lawsuits.
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Through this branch of law, it is possible to prevent abuses such as the lack of health insurance coverage for treatments or an abusive adjustment of a health insurance plan through the assistance of a lawyer specializing in health law. So, in this article you’ll get a better understanding of what health law is, its functions, practice areas, related processes and much more!
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What is the right to health?
The Brazilian Constitution establishes sanitation as a right of every citizen that must be protected by the state (through the SUS) and by the supplementary sanitation system (sanitation plans). This right is defined in articles 6 and 196 of the Federal Constitution, which is to be guaranteed by public policies, as shown in article 197 of the FC,
“Art. 6 Social rights are education, health, food, work, housing, transportation, leisure, security, social security, maternity and childhood protection, assistance to the helpless, in the form of this Constitution.
Art. 196. Health is everyone’s right and the duty of the State, guaranteed through social and economic policies aimed at reducing the risk of disease and other illnesses and universal and equal access to actions and services for its promotion, protection and recovery”.
Art. 197. Health actions and services are of public relevance, and it is up to the Public Power to decide, under the terms of the law, on their regulation, supervision and control, and their execution must be carried out directly or through third parties and also by individuals or legal entities governed by private law”. (BRASIL, 1988)
Furthermore, in Brazil, the health insurance market is governed by Law 9.656/98 and regulated by the National Health Agency (ANS). In addition, the relationship between users and health plans is considered a consumer relationship, which is also governed by the Consumer Defense Code.
It is within this scenario that the term “health law” arises. Thus, to deal with health-related issues, there is a lawyer specializing in health law, a branch of law that focuses on patient rights and responsibilities, relationships with health professionals, access to treatment through the SUS and much more.
Health insurance law
The Medical and Hospital Rights Law No. 9.656/98, also known as the Health Plans Law, governs medical and hospital rights. This is due to the fact that many professionals who are contracted, affiliated or otherwise linked to them may become the subject of legal action (contracts, NIPs, therefore, lawsuits, etc.).
It should be noted that, according to the law, operators are legal entities set up in the form of a civil or commercial company, cooperative or autonomous entity that operates a product, service or contract related to healthcare.
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Law 12.892 for practicing medicine
In addition to the law presented above, another very important one for understanding more about the work of lawyers specializing in health law is Law No. 12,842. This is because it governs the practice of medicine, including the objectives of the medical profession, principles and particular activities.
Through this law, we understand which functions and activities are carried out exclusively by doctors and which can be delegated to other health professionals, such as nurses, physiotherapists, speech therapists, biomedical professionals and others. Because of its importance, the second article of this law stands out:
“Art. 2. The object of the doctor’s work is the health of human beings and human communities, for the benefit of which he must act with the utmost zeal, to the best of his professional ability and without discrimination of any kind.
Sole paragraph. Doctors shall carry out their professional activities in the field of health care in order to:
I – health promotion, protection and recovery;
II – disease prevention, diagnosis and treatment;
III – the rehabilitation of the sick and disabled.” (BRASIL, 2013)
It is obvious that, in addition to this law governing the practice of medicine, it is essential that hospitals, clinics and health service providers, as well as health law lawyers, know the laws governing other professions in the sector, such as the Nursing Law (Law No. 7.498/86), the Dentistry Law (Law No. 5.081/66) and the Physiology Law (Law No. 5.081/66).
Judicialization of health
The judicialization of healthcare is a term that is becoming increasingly popular and represents a complex and challenging phenomenon for the public sector and medical professionals. It refers to the process of pursuing a patient’s rights through the judicial system.
Rights such as the supply of medicines, authorization for diagnostic and surgical procedures, among others, are denied to patients in many situations.
In this case, there is no other way to guarantee the rights that have been violated. This is because, as previously stated, health is a constitutionally guaranteed right and the judiciary is the channel through which these rights are ultimately guaranteed.
Thus, when the state fails in its duty to guarantee the health of the city and receives a negative health response, it is customary to seek assistance from the Ministry of Public Health and specialized medical lawyers. Once it has been determined that the case needs to be taken to court, it is essential to note that the jurisdiction to judge the case is still being debated. However, as a rule, lawsuits should be filed in the patient’s home, which is inadequately equipped for the consumer.
Juridicization of health in Brazil in practice
According to the Justice in Numbers report published in 2017 by the National Council of Justice (CNJ) with a base year of 2016, and in general, they show that lawsuits continue to grow and the judicialization of health continues to grow at the same pace.
Judicialization in this area, however, continues to be a major challenge for Brazilian health authorities. According to the Pharmaceutical Research Industry Association (INTERFARMA), health lawsuits against the federal government increased by 129 % in three years – 2012 to 2014 – and totaled more than R $1.7 billion in damages.
In this way, it becomes clear how thousands of Brazilians are fighting in court for their right to health treatment. The population’s financial difficulties, an ageing population, a lack of subsidies, failures in public administration, budget cuts and a lack of resources, among other difficulties, are the reasons why this sector still needs major adjustments to guarantee the right to health for the entire population.
The role of a lawyer specializing in health law is to ensure access to health and compliance with patients’ rights before public or private institutions.
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Check out the most common cases of health law
As mentioned above, there are several cases in which a lawyer specializing in health law can help to ensure that health rights are respected. So here are some cases in which a lawyer in this area can help.
Against health insurance
In practice, the work of a lawyer specializing in health law in lawsuits against health plans consists of seeking the realization of the rights of the client of a health plan, based on Brazilian legislation and court decisions. And this is one of the main reasons why clients seek out specialized professionals to file a lawsuit.
Another factor can also be found in cases of specialized professional action against health plans: the urgency of carrying out procedures that are critical to the patient’s quality of life. This is a critical characteristic that requires attention, and this is exactly what the health law lawyer must offer clients.
As this is one of the most common reasons why patients seek legal services to deal with medical problems, you can fill in the form below and have access to all the information you need, as well as the best professionals in the field of medical law.
We have an article on denial of health insurance to help you understand more about the subject.
1. denial of health insurance
The denial of health insurance is one of the main reasons why health insurance beneficiaries are increasingly resorting to the courts in lawsuits against insurers for various reasons.
In this scenario, a negative health plan is one of the most common problems that causes headaches for patients who are ignored when they need medical cover.
After purchasing the service, each beneficiary of the plan must complete a waiting period before using certain items, called a grace period. Apart from a few exceptions, and the information provided in the contract signed by the plan administrator, a negative outcome is unlikely. Any negative reaction to a drug, treatment or procedure prescribed by the patient’s treating doctor should not be ignored.
In the case of refusal, the justice system believes that this conduct violates the fundamental principles of the right to health and ignores the unique characteristics of each patient. In other words, the patient ends up being harmed and can take legal action to reverse this.
When a provider refuses a procedure, medication or treatment, the client’s right to be cared for is violated. When dealing with this situation, there are a few steps that the health law specialist will take in order to reverse the situation.
1.1 Health insurance waiting period
A waiting period in a health insurance plan is nothing more than a predetermined period of time that must be observed before the beneficiary can receive health insurance services, such as consultations, exams, hospitalizations, surgeries, among other services.
Regardless of whether the waiting period is provided for by law, in many cases beneficiaries are subjected to insufficient treatment, requiring the assistance of a health lawyer to protect the patient’s rights by taking legal action against the health plan.
The waiting periods for a health plan are established by the law governing health plans in Brazil. According to Law No. 9.656/98, the maximum waiting periods for health plans are as follows: 24 hours for urgent and emergency care; 180 days for other cases, such as surgery, hospitalization, etc.; 300 days for full-term births.
Urgent and emergency services are available 24 hours a day, seven days a week. These times can be reduced according to the plan’s discretion, but can never be exceeded. It is important to note that if the beneficiary has a pre-existing illness at the time of contracting, the law allows the health plan to impose treatment restrictions for elective procedures for up to 24 months. This is known as Temporary Partial Coverage (TPC).
1.2 Denial of surgery under the health plan
Denials of surgery or equivalent procedures are undoubtedly among the most common causes of conflict between clients and health plans. In order to maintain the profitability of the health plan’s operations, it is very common to see cases in which the provision of a service is rejected.
In such cases, the ideal is for the patient to seek immediate advice from a health insurance specialist to determine the reason for the negative result. It is then up to the specialist lawyer to work to ensure that the rights denied to the client are enforced. Limitations on health treatment, negative procedures and even the charging of “surprise taxes” are abusive behaviors that must be combated.
It is also worth noting that the health plan must provide the denial in writing. This is a rule established by the National Supplementary Services Agency, or ANS. If the refusal to authorize surgery is considered unjustified, it is possible to file a lawsuit against the health plan that denied the authorization. In the vast majority of cases, it is possible to file an injunction against the insurance plan in order to ensure that the insurance plan covers the surgery immediately.
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1.3 Denial of medication under the health plan
There are countless diseases for which it is necessary to use a high-cost drug for the best treatment. However, due to the high cost of these drugs, the health plan or the state refuses to pay for them. As a result, the arguments used are among the most diverse and complex.
It is worth noting that the state’s obligation to provide high-cost medicines, which are considered extremely expensive, does not apply to any situation. Considering the peculiarities, only a lawyer with extensive experience will be able to analyze the situation and give an opinion on the viability of a lawsuit.
However, it is important to note that when the claim is made against the state, the judicial system has more restrictions in terms of obligation, but when the case is against a health plan, the patient’s right is contractually guaranteed.
Therefore, if the patient has a health insurance plan and it refuses to provide expensive medication, it is essential that they seek the advice of a specialist. Only with a professional’s foundation on the subject will it be possible to guarantee the continuity of treatment for the disease.
When filing a lawsuit to obtain a high-priced drug, it is essential that the doctor’s letter clearly states the reasons for using the drug, as well as all the relevant information about the disease the patient is fighting.
1.4 No ICU in the health plan
If the patient’s health insurance plan includes hospitalization, it must cover the costs of hospitalization and procedures such as elective and emergency surgery. Negative coverage of hospitalization by the health plan can be considered abusive.
Health insurance contracts are governed in Brazil by Law 9.656/98, which requires health insurance cover for any illness listed in the International Classification of Diseases and Related Health Problems, abbreviated as ICD.
In the case of health plans that offer hospital segmentation cover, the law makes it compulsory to cover hospital admissions. This also includes cover for intensive care units and no limit on the length of stay.
In addition, it is worth noting that the health insurance benefit is protected by the Consumer Defense Code, which considers any restriction that places the consumer in a position of undue advantage to be null and void.
1.5 Denial of childbirth under the health plan
In general, if the health insurance plan includes cover for obstetrics, all prenatal and postnatal expenses should be covered. However, most complaints about coverage are due to the grace period of the plan.
When signing up for a health plan, the beneficiary must comply with the so-called waiting period, which is a defined period of time that must be observed before the beneficiary can use the plan’s services, such as consultations, exams, hospitalizations, surgeries and so on.
The maximum amount of time that can be covered under the plan for full-term births (which take place until the end of the pregnancy) is 300 days. This means that if a pregnant woman signs up for the plan when she is already pregnant, she will not be entitled to cover for delivery in the event of a full-term pregnancy.
1.5.1 Health insurance waiting periods for births
Although the 300-day waiting period determined by health plans is mandatory by law, there are some aspects that must be observed in these matters, especially when the situation is urgent or emergency and immediate and comprehensive treatment must be provided.
Abusive demand for maternity care from the hospital is especially common when the pregnancy is complicated or the baby is due to be born prematurely. In this case, health plans state that the waiting period is 300 days, so the birth will not be covered. However, in these cases, abortion is considered an emergency procedure.
The health insurance law defines emergency situations as “resulting from personal accidents or complications in the gestational process” and emergency situations as those that “imply an immediate risk to the patient’s life or irreparable damage”.
In other words, if the pregnant woman has a problem that puts her or her baby’s life at risk, the birth must be brought forward and the plan must cover her immediately. As a result, the 300-day waiting period would not apply in these cases.
From this perspective, health plans cannot demand more than a 24-hour waiting period for premature births and complications in the gestational process. Negative coverage of emergency procedures violates the contractual objective of the plan, which is the preservation of life. In this sense, and taking into account the inadequate use of care, the refusal to pay is abusive.
1.6. Negative for pre-existing illness in the health plan
It is very common for patients to be denied coverage when they ask their health insurance company to cover specific treatments or procedures under the pretext of treating a “pre-existing illness”. First of all, it is worth pointing out that, from a medical point of view, there is no concept that defines the term “pre-existing illness”.
As a result, this term was created by insurers and companies offering health plans as a way of circumventing cover for illnesses that the consumer already had before purchasing the plan or health cover. In fact, current legislation incorporates this premise, defining pre-existing illness as: that which the consumer or their guardian knows they are carrying or suffering from at the time of taking out the plan.
Whether or not there is a pre-existing illness has a direct impact on the length of the waiting periods to be observed. Thus, although the maximum waiting period for difficult medical procedures is normally 180 days from the date of contracting the plan, if the patient’s condition is considered to be pre-existing at the time of contracting, the maximum waiting period may be 24 months.
The thing is, although the principle is sound, it is extremely difficult, if not impossible, to predict when an illness will reveal itself. For this reason, insurers can currently impose a maximum waiting period of up to 24 months if they can prove: (I) that the illness was present at the time of taking out the plan; and (ii) that the patient was aware of their condition at the time of taking out the plan, but decided to omit the information.
1.7 Denial of medical examination coverage in the health plan
Denial of cover for medical examinations, although quite serious, is a very common occurrence. This is often unavoidable, depending on the individual’s financial situation, as the cost of the procedure can compromise the individual’s livelihood.
For this reason, another option is to go to court and ask the judge to issue an emergency order requiring the school district to provide the necessary resources to carry out the examination. In cases of emergency examinations, if the patient is taken to a hospital where the insurance plan’s coverage does not apply, the cost of the medical expenses cannot be contested when these two factors are combined: a) the emergence of the situation; and b) the impossibility of using the network accredited by the insurance plan.
The provision of medical care in emergency cases cannot be denied because the establishment is not accredited by the patient’s health insurance network. In such cases, the plan must be called in to cover the costs of the emergency procedure.
1.8. Denial of cosmetic procedures under the health plan
Even though it is not common, the health plan can be obliged to carry out procedures of an aesthetic nature. The majority opinion among judges is that the inclusion of a contractual clause that excludes aesthetic procedures from the health plan’s coverage does not violate the law and is therefore valid.
However, cosmetic surgery is not always intended to improve a person’s appearance. This type of surgery is often used to restore parts of the physical body that have been damaged as a result of an illness or as a result of a surgical procedure.
As an example of this, we can consider the need for a surgical procedure to reconstruct a limb, which will allow the patient to move more freely.
According to the provisions of Law 9.656/98 in article 35, the health plan must include all expenses necessary for the cure of the disease and its treatment, in order to provide the patient with comprehensive care. As a result, the health plan can exclude cover for procedures for aesthetic purposes only, but if the aim is to prevent, treat or recover from an illness, cover is obligatory.
If you are experiencing any of these difficulties related to denials of medical services, you can click on the form below and have access to all the information you need, as well as the best professionals in the field of medical law.
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What skills are fundamental to being a good lawyer specializing in health law?
During this period of great complexity and interest in the areas of health, medical ethics and human rights, the role of the lawyer specializing in health law is at the forefront of public attention. It is therefore essential that lawyers specializing in this area have some important tools to exercise their role assertively.
1. Code of Medical Ethics
Knowing all the rules that must be followed, all the mechanisms of the Code of Medical Ethics and the ethical aspects related to medical conduct in the exercise of their profession, such as informed consent and confidentiality, is fundamental for professionals in the field.
2. Consumer Protection Code
The provision of medical services falls under the Consumer Protection Code. Therefore, in order to have ownership and know what the patient’s rights are, the professional must be well acquainted with the process within the area of consumer protection.
3. Study and research skills
Knowledge is continuous and forever. That’s why it’s important for professionals to keep up to date with the fundamentals of medical law, as well as market developments. Therefore, it is essential to be in constant contact with truthful and up-to-date information to be consulted before issuing a final opinion.
A lawyer specializing in health law needs to exercise investigative skills in order to determine the basis of the case with scientific and logical support. Therefore, participation in conferences and seminars during the search for, as well as specialization and courses at a high-quality educational institution, are elements expected of the professional in the field.
4. Interdisciplinarity
The best health law lawyer is one who understands medical practice, biology, anatomy and physiology, as well as how the human body works. Just as each human being is unique, each case also has its own singularities.
It is also important that the professional has the social skills to talk to other professionals in the field in order to understand the situation from other perspectives and receive advice, while respecting the precepts of professional secrecy.
5. Practical knowledge
It is essential to live the practice in order to understand and challenge public and supplementary health in Brazil, its main problems, the current context and the challenges of health law and justice in the future. With this, the professional must also understand the relationship between the State, the Judiciary, the Public Prosecutor’s Office, the Defense, the Government and other third parties, such as doctors and health institutions.
6. Human Relations
Psychological preparation to participate in the life of the patient, doctor or other person involved in the case should be a priority for the specialist lawyer. This is because people’s feelings during the process, the victims’ pain, need to be taken into account. It is important for the professional to remember that human beings are flawed and, more often than not, the situation can result in pain and emotional instability.
7. Intellectual and personal skills
Some skills are important to see in lawyers in this field, such as thoughtful criticism, defending causes through solid, ethical, legal and well-justified speeches, understanding problems in an interdisciplinary way, the ability to synthesize complex information and to submit to criticism, always using empathy as a guiding principle for analyzing the entire process.
All these elements are more than important to find in professionals so that they can be the best health law lawyers. That way, they can deal with the whole process in an authentic, ethical, respectful, serious, assertive and empathetic way.
Find out more about the market for lawyers specializing in health law
The market is very hot and there is no crisis in medical law. Citizens going to court for health-related problems has become commonplace. Going to court when there is a negative health service is becoming commonplace.
This is likely to maintain the need for qualified professionals in a highly contested field in the future. Following the trend observed earlier, according to data from the National Council of Justice (CNJ), the number of health-related lawsuits increased by 130% between 2008 and 2017.
According to the study, the health sector alone is responsible for 498,715 cases at first instance and 277,411 cases at second instance. The main reason for lawsuits against health plans is the negative impact of procedures.
The most sought-after specialties are gynecology and obstetrics (42.6% of cases), orthopedics/traumatology (15.9%), plastic surgery (7%) and general surgery (7%) Cases involving the medical fields of ophthalmologists, dermatologists and endocrinologists are not often seen in court. In other words, demand is high and will continue to increase as medicine advances and new technologies emerge.
Conclusion
Throughout this article, we have demonstrated the importance of the judicialization of health care, as it is a current and relevant issue. After all, more and more patients are becoming aware of the need to seek judicial resolution of their problems.
Healthcare is one of the most significant sectors, as it facilitates and provides the necessary resources for the prevention and treatment of illnesses for thousands of people. After all, the right to health is something guaranteed by the state and everyone needs access to quality services to ensure their well-being.
Furthermore, in the context of health professionals, further progress in studies on regulation within the health area is necessary in order to understand how the more specific rules of the environment work.
Medical law is a growing field with a high demand for qualified professionals in all specialties. Specialization is essential for lawyers who identify with and wish to work in this field.
