A responsabilidade civil do Estado no fornecimento de medicamentos de valor elevado.

Abstract

The present work has the civil responsibility of the State in the supply of medicines of high value. The research problem concerns the obligation of the State to ensure the health of the individual through the provision of high-value drugs, whether they are of continuous use or not, having as background the great doctrinal divergence on the application of the reserve of the possible to the existential minimum. The hypothesis presented is that, in certain cases, it is possible to have state responsibility for the provision of medication, since the plaintiff is protected by the Federal Constitution, which guarantees the right to health, fundamental public subjective rights. Its general objective is to discuss the process of supplying medicines of high value by the State in the face of its responsibility and its omissions. The specific objectives of such research are: to analyze the arguments and grounds used by the State to exempt itself from the obligation to provide high-value medicines to the individuals who most need them; to explain what the doctrine understands about the matter and what the position is pacified; to investigate the process of judicialization to obtain the medicines and the position of the Courts, especially the Federal Supreme Court. Initially, a comprehensive analysis of civil liability was made based on its historical evolution in Brazilian positive law. In the elaboration of this research, the method of dialectical approach was used. Regarding the procedure method, the method used was the history and the approach of the problem was in the qualitative / explanatory modality. Regarding the technical procedure, the bibliographical-documentary was chosen, since the elaboration took place from laws, books, internet and articles of periodicals, with analysis of content, with direct and indirect treatment of the sources. As regards its nature, it is of an applied nature. In the course of the study, a brief study was made of the constitutional principles of the right to life, dignity of the human person and, above all, the right to health. Further, there is a rapid explanation of the State's omissive conduct in relation to the provision of medicines. Finally, the object of the present study is the judicial decisions that have been the subject of a great debate between the elaborators and executors of the public policies in the provision of high value drugs and the jurisprudential positioning of the courts. At the end of this study, the conclusion was that the individual's right to provide medication depends on the specific case and must be analyzed in detail, according to the established parameters, and, in most cases, granted to the complainant.