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A encruzilhada da judicialização da saúde no Brasil sob a perspectiva do Direito Comparado

2021; FUNDAÇÃO OSWALDO CRUZ; Volume: 10; Issue: 4 Linguagem: Inglês

10.17566/ciads.v10i4.736

2358-1824

Wanessa Debôrtoli de Miranda, Iara Veloso Oliveira Figueiredo, Mônica Silva Monteiro de Castro, Fausto Pereira dos Santos, Helvécio Miranda Magalhães Júnior, Rômulo Paes-Sousa,

Medical Malpractice and Liability Issues

Objective: the impact of the judicialization of health in various parts of the world points to a crossroads between diverse ways of dealing with the phenomenon, therefore, the work aims to contribute to this debate from an overview of judicialization in Brazil and a comparison with experiences from other countries. Methodology: this was a narrative review on the theme of the judicialization of health in a comparative perspective. The research was divided into two stages: contextualization of the judicialization of health in the international scenario, using a comparative method from the perspective of Comparative Law, and a narrative review on the judicialization of health in Brazil. Forty-six works were used: 19 international and 27 Brazilian. Results: two different approaches to the judicialization of health stand out in comparative studies: the Latin American and the South African. In the first, the phenomenon presents greater magnitude with decisions favoring the minimum existential, it is especially complex in Brazil, Colombia, and Costa Rica; in the second, the reserve of the possible stands out in the decisions. The analysis of the work conducted in Brazil supported the construction of a timeline providing an overview of judicialization in Brazil, and the trajectory of this fluid phenomenon, which changed over time as new issues and ways of dealing with it emerged and developing. Conclusions: the study shows that the judicialization of health is a multifaceted phenomenon, bringing to light a dilemma between several paths to be followed. However, it is a subject that lacks studies on the user's point of view, and on the health outcomes resulted from lawsuits. The complexity of the phenomenon culminates in the diversity of interventions in countries, generating conflicts between guaranteeing the right to health and budgetary limitations. It is concluded that judicialization has positive and negative points: it is a solution, but it is also a problem.