The Judiciary Brings Closer What the Laws Separate: The Judicialization of Health in the Public Sector and The Private Health Sector

Abstract

This article analysed and compared the judicialization of healthcare against the Brazilian National Public Health System and against private health insurance companies. These subsystems have very different characteristics, operating logics, and legislations. However, the judicialization against them presents several similarities. There are tens of thousands of lawsuits per year against each subsystem; most lawsuits claim access to treatments that are not included in the official lists and protocols; the success rate for patients in the courts is very high, and it is almost certain that the Judiciary will order the funding of the treatment requested; the way courts decide is very similar; the budgetary impact of these decisions is significant; judicialization has contributed to the institutionalization of the health technology assessment in the SUS and in the private health insurance sector. However, the economic impact of judicialization is different in each subsystem, leading to distinct systemic and distributive effects. In the Brazilian National Public Health System, due to budgetary constraints, the cost of judicialization tends to be absorbed by reallocating resources within the health budget. Health insurance companies, however, can distribute this cost to users through the increase in insurance premiums, although there are regulatory and market limits to such transfers. Although judicialization is a fast and inexpensive mechanism for accessing medical treatments, it poses significant challenges for both the public sector and insurance companies, which deal with increasing demand and inflation in healthcare.