Health plan is condemned for denying treatment to autistic child

If there is an express medical indication, the refusal to cover the cost of treatment is abusive on the grounds of its experimental nature or because it is not included in the list of ANS procedures.

Operator must provide treatment or pay reimbursement to the child’s parents

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Based on Precedent 102 of the TJ-SP, Judge Fábio de Souza Pimenta, of the 32nd Civil Court, sentenced the health plan operator SulAmérica to provide treatment to a child with autism in a private clinic near his residence.

In the action, those responsible for the child claim that the plan does not have accredited clinics near their home and that they no longer have the financial conditions to bear the financial cost of treatment.

In its defense, the operator maintained that the treatment prescribed for children is not included in the ANS list, which becomes exhaustive, according to RN 428/2017. The company also argues that medical prescriptions are often subjective and that the treatment indicated by the child’s doctor is not the only one capable of treating the child’s illness.

The Public Prosecutor’s Office stated that the request was granted. When analyzing the case, the judge determined that the person responsible for paying the health plan becomes part of the active pole of the action.

“Thus, the exclusion of a procedure for being on a list of the ANS, or of contractual exclusions of procedures, is an abusive clause and, as such, invalid even more because it is not up to the health plan, to the ANS (whose list is just the summary reference for health plans, serving only to guide service providers) or to the contract to assess what is most appropriate for the treatment of a patient, but to the doctor he trusts who, for all intents and purposes, if he is acting with imprudence, negligence or malpractice, he may be liable civilly for the damages caused by his conduct (including before the insurance company that pays for the procedures unduly indicated by this professional)”, wrote the judge in the decision.

The judge stated that the operator must provide full coverage through the accredited network or, if in a private network, upon reimbursement, following the table of the health plan from which the author is insured. He also ordered the company to pay R$10,000 to those responsible for the child as moral damages.

The authors of the action were represented by the attorney Gustavo de Melo Sinzingerfrom Sinzinger Advocacia.

Process: 1137112-53.2021.8.26.0100

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