Abstract - Between the court and the clinic: Lawsuits for medicines and the right to health in Brazil

João Biehl, Joseph J. Amon, Mariana P. Socal, Adriana Petryna

Health and Human Rights 14/1

Published June 2012

Abstract

Background: The Brazilian Constitution states: “Health is the right of all persons and the duty of the State.” Yet individuals in Brazil frequently face barriers to health prevention and treatment. One response to these barriers has been a “judicialization” of the right to health, with an increasing number of patients suing the government for access to medicines.Objective/Methods: This study uses a mixed methods approach to identify trends in lawsuits for medicines in the southern state of Rio Grande do Sul (RS) and to characterize patient-plaintiffs. Electronic registries were used to determine the number of health lawsuits filed between 2002 and 2009. In-depth interviews were conducted with thirty patient-plaintiffs, and 1,080 lawsuits for medicines under review between September 1, 2008 and July 31, 2009 were analyzed to assess socio-demographic, medical, and legal characteristics of patient-plaintiffs.Results: Between 2002 and 2009, the annual number of health-related lawsuits against the state of RS increased from 1,126 to 17,025. In 2009, 72% of lawsuits sought access to medicines. In-depth interviews revealed that patients are desperate to access medicines for chronic and advanced diseases, and often turn to the courts as a last resort. Among the 1,080 lawsuits examined, patient-plaintiffs were more likely to be older than 45 years (68%), retired or unemployed (71%), and low-income (among those who reported income, 53% (n=350) earned less than the national minimum wage). Fifty-nine percent of all cases were represented by public defenders. Plaintiffs reported 1,615 diseases and requested 2.8 drugs on average (range 1-16). Sixty-five percent of the requested drugs were on government pharmaceutical distribution lists; 78% of the 254 drugs on these lists were requested. In 95% of the cases analyzed, district courts ruled in favor of plaintiffs. Among the 917 cases with a final state high court ruling, 89% were in favor of the plaintiff. In justifying their rulings, judges most frequently cited the government’s obligation under the Constitution’s provision of a right to health.Discussion: Right-to-health litigation is a widespread practice in southern Brazil. Government pharmaceutical programs are struggling to fulfill their goal of expanded access and rational use of medicines, and poor patients are leveraging public legal assistance and a receptive judiciary to hold the state accountable to their medical needs. “Judicialization” is an alternative pathway for accessing health care, increasingly understood as access to medicines of all kinds. Tracking the health outcomes and budgetary impacts of right-to-health court cases could help inform adequate treatment policy and evaluate trends in access.