The claim for medicines and the right to health.

Abstract

The problem that has been created for the medical services institutions due to the indication of high-cost drugs or drugs that have recently appeared on the market, as well as that of "generics", is entering its first decade. And an increase in lawsuits on this issue is foreseen. There is a direct relationship between high-cost drugs and legal claims. The core of the problem then lies in its economic aspect: the financing of these drugs conspires against the accounting stability of the institutions, even though they are included in the Therapeutic Drug Formulary (FTM) of the Ministry of Public Health. To finance them, they resort to a body that is part of the national health system, the National Resources Fund (FNR), which is responsible for both complex treatments and high-cost drugs. This agency has periodically updated treatment protocols, drawn up by a multidisciplinary Technical Advisory Commission. Such as the one that advises the MSP for the update of its FTM. The patient's right to health as a fundamental right of the person, of higher hierarchy than the right to prescribe or deny by protocols or costs, is the counterpart of the patient's right to health as a fundamental right of the person, of higher hierarchy than the right to prescribe or deny by protocols or costs. The problem becomes more complex as it is impossible for the FNR to cover all eventualities of treatment by means of its own protocols, because its updating is not as fast as the pharmaceutical industry's. Since the treatment of a disease is a matter that does not admit delays, the judicial recourse is an action of amparo, an exceptional recourse, a quick trial, which is resolved in days or weeks, by a judge of first instance. If the amparo is denied, an action for annulment of the FNR's denial may be brought before a three-judge civil appeals court. The sentence at this level must be issued unanimously, which can lead to delays due to the calling by lottery of a fourth (or fifth member) in case of disagreement. The difficulty in the analysis of the case for those judges, usually complex and bristling with discrepancies, the peremptoriness of its treatment, and the tremendous responsibility in giving a negative ruling as positive, since it is a matter of health and life, is understandable.

It is a cerebral oncological disease where there was a medical expertise provided by the court (a medical oncologist, a pharmacologist, a forensic doctor) and a discordant sentence. As a note of special interest, we add the doctrinal treatment of the right to health by the lawyers Guillermo García Duchini and Pedro Montano Gómez, precisely those who sponsored the patient's claim.
These prestigious professionals authorized the publication of their still unpublished work in this Journal, which is pleased to host in its pages professionals of this academic level, deserving our deep appreciation.
It is understandable the difficulty to incorporate in the doctors the juridical plot in which the drama of this patient unfolded. But at a time when the judicialization of medicine has been imposed "to stay", it is good for colleagues to recognize that we are practicing in a different era from that of our elders. And that medical activity no longer comprises only the doctor-patient duo; now there is a third member that has entered with irresistible force: the judiciary. For this reason, forensic medicine builds a bridge between the clinician and the magistrate, as is clearly shown in the sentence we are analyzing, which had its fundamental support in the medical expertise.

Received for review: May 2012.
Accepted for publication: June 2012.