Judicialização da saúde: a atuação jurisdicional na concessão de medicamentos ou de tratamentos de saúde de alto custo.

Abstract

The increase in the number of litigation related to the judicialization of health reflects a deficit in the health system. Hordiernamente, faced with the crisis scenario that the country faces, it becomes increasingly costly the guarantee, by the State, of the effectiveness of the constitutional right to health, thus leading the citizens, to seek in the Judiciary an alternative source to the realization of this right. The purpose of this research is to analyze the guidelines adopted by the Superior Court of Justice and the Federal Supreme Court regarding the constitutional right to health, by analyzing the jurisprudence and observing the points that the courts use to define the concession of medicines or treatment of Health care. In the study, the exploratory and interdiciplinary research technique was used, which was used in bibliographical research, with an analysis of legislation, doctrine and jurisprudence related to the topic. The type of approach method used was the deductive method, through a general analysis of the guarantee of the right to health, against the need for expensive treatments and drugs. The method of procedure used is the history, through the analysis of the right to health in the Brazilian constitutions, as well as the exegetic-legal that is based on the analysis of legislation and jurisprudence. The study showed that the number of lawsuits seeking health care assistance has increased considerably in the last decade, mainly in actions related to medicines not yet adopted by the Unified Health System, which can be attributed several times to failure to implement Or execution of public policies. It is concluded through the present study that the Judiciary considers that the judicialization is an instrument of exception to search for this right and not the rule.