TJMG maintains decision of the District of Betim and orders health plan to compensate patient for denial of procedure

The 14th Civil Chamber of the Court of Justice of Minas Gerais (TJMG) maintained the decision of the District of Betim, and ordered a health plan operator to compensate a patient with R$ 10 thousand, for moral damages, after denying coverage for a procedure surgical.

According to the process, the patient would have been diagnosed with scoliosis due to the weight of her breasts, and had been undergoing physiotherapy sessions since 2019. In addition to the treatment, she used pain medications which, as she reports, did not have the desired effect, requiring, thus, undergoing breast reduction surgery.

The author stated that she asked the health plan to assess the situation, which was denied. A consultation with a specialist would also not have been authorized by the company.

The woman then sued the court so that the operator was forced to authorize the surgical procedure, in addition to paying moral damages for the embarrassment suffered.

The operator stated that “excluded is the possibility of requiring private health plan operators to offer broad and unrestricted coverage of any and all procedures, which, in turn, would result in the attribution to them of the assumption of burden that lies with the State”.

The company also argued that the insurance policy and contract clauses were in accordance with the standards contained in the Consumer Protection Code, and that the action was based on “mistaken understanding of reality and that the author does not present any evidence capable of substantiate the claim for compensation and does not even point out which conduct of the defendant could be classified as an unlawful act capable of generating the duty to compensate”.

The decision in the 1st Instance was in favor of the author’s requests, on the basis that “if there is a medical prescription corroborated by reports, the health plan operator cannot deny coverage”. As a result, the company appealed.

The rapporteur, judge Marco Aurelio Ferenzini, maintained the sentence. He highlighted that the medical reports attached to the files demonstrate that the author was diagnosed with the disease and that, for symptomatic control, it would be essential to perform bilateral reduction mammoplasty.

“Therefore, as the indicated procedure was prescribed by a doctor accompanying the patient, there is no question of a legitimate refusal to perform the surgery. Therefore, the defendant’s refusal to carry out the procedure remains unjustified, which characterizes the illegality of the health plan operator’s action”, stated the judge.

The judge also highlighted that “in view of the specificities of the specific case and paying attention to the constitutional principles of reasonableness and proportionality, the quantum of compensation set at R$ 10 thousand must be maintained, showing that this amount is capable of discouraging the reiteration of conduct by part of the defendant and compensate the plaintiff for the damages incurred”.

Judge Evangelina Castilho Duarte and Judge Valdez Leite Machado voted in agreement with the rapporteur.