The State Court determined that a health plan operator must provide, within five days, home medical assistance service (home care) for a child with cerebral palsy. The decision is a preliminary injunction of the 1st Court of the District of Ceará-Mirim.
In the action, the child was represented by the mother who reported that on May 17 there was a medical prescription for the home medical care service with multidisciplinary support of motor and respiratory physiotherapy every day, speech therapy three times a week, nutritionist, doctor and nurse, with the availability of a nursing technician for 24 hours and medical, nutrition and nursing visits every 15 days.
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The mother claimed that the health plan, however, only authorized speech therapist and physical therapist services twice a week, which she says is insufficient. The mother informed in the action that the child was still hospitalized and that the medical team demanded that she could only leave with the availability of a nurse 24 hours a day under the terms of the report, since without home care the child’s life would be at risk. .
According to the decision of judge Herval Sampaio, the company must provide a speech therapist three times a week; physical therapist five times a week; doctor fortnightly; 24-hour nursing service through a nursing technician; nurse fortnightly; nutritionist fortnightly; supply of the drug Depakene 50 mg/ml, according to medical prescription; supply of diapers, according to medical prescription; Nutri Fiber 1.5 Diet; sufficient material for the complete procedure (gases, gloves and syringes); removal service for emergencies; hospital bed; adapted bath chair; adapted wheelchair, in addition to the materials, supplies and medicines necessary to maintain the author’s life and health.
“It was highlighted, in the aforementioned paradigm, that the home care service, when necessary – as in the analyzed case -, is less costly for the health plan than hospitalization and that the allegation of the absence of contractual provision does not benefits the health plan, because, when in doubt about the contractual rules, the interpretation most favorable to the insured who makes an adhesion contract must prevail, in the dictates of the rules contained in art. 47 of the Consumer Protection Code and art. 423 of the Civil Code”, reports the decision.
For the magistrate, it was recognized that the refusal of the health plan to cover the expenses of the home care service, essential for the child, is abusive.
The magistrate also states that the medical report attached to the process is surgical, saying that there is a need for multidisciplinary support to maintain the child’s health, including detailing the therapeutic support for this purpose. “As can be seen, the medical recommendations are quite clear and precise in describing the need for the service claimed by the plaintiff for the maintenance of her health and life. Therefore, the probability of the right is evident.”