Bariatric surgery, also called Gastroplasty, is a surgical procedure that aims to combat the patient’s obesity, through an intervention that focuses on reducing the eating capacity of the individual with a very high BMI, which would cause a reduction in his weight. .
The surgery is performed in a way that significantly changes the size of the individual’s stomach and can even change the path of food in the body. These alterations in the anatomy of the individual end up causing a feeling of satiety, providing a rapid reduction in caloric absorption. As a result, the individual undergoing the procedure begins to experience substantial weight loss in a short period of time that would not normally have been achieved.
This type of surgery, which has evolved more and more, has required a shorter period of time for the full recovery of the individual, who soon returns to his routine of activities, and has caused fewer hangovers. Typically, doctors recommend bariatric surgery
Therefore, many people who are health plan users have to resort to bariatric surgery, sometimes as a last resort for their case. As a result, the demand for bariatric surgery has grown significantly in Brazil, which currently ranks second on the list of countries with the most surgeries performed. However, when trying to use the health plan, these people are faced with denial of coverage. In cases like this it is always interesting for this subject to fix an appointment with a trusted lawyer, to evaluate the situation and understand if it is possible to appeal to the Judiciary to demand that the Company pay for the intervention.
According to the National Agency for Integrative Health (ANS), health plans are obliged to offer bariatric surgery in the following cases:
- The patient must be between 18 and 65 years of age;
- Diagnosed with morbid obesity for more than 5 (five) years;
- Having a BMI (body mass index) of 35 kg/m² and 39.9 kg/m² associated with the presence of certain diseases such as hypertension, cholesterol, diabetes, herniated disc or fatty liver – fatty liver disease, among others (a example would be a person 1.70 meters tall and weighing 102 kilos);
- Have a BMI between 40 kg/m² and 50 kg/m² with or without a subsequent obesity disease (an example could be a person 1.70 meters tall and weighing 120 kilos);
- Or patients with decompensated psychiatric problems, patients with moderate or severe dementia, alcoholics or illicit drug addicts, who do not need to meet the other requirements.
According to the Brazilian Society of Bariatric and Metabolic Surgery, bariatric surgery is indicated, in addition to the cases provided for by the ANS, for those individuals with a BMI between 30 and 35 kg/m² and who have comorbidities considered “serious” by a specialist doctor (an example could be a person 1.70 meters tall and weighing 87 kilos, associated with a serious comorbidity).
Therefore, it is possible to perceive that the clinical indication for bariatric surgery also intervenes in cases other than those originally envisaged in the ANS, and which should in any case be covered by the health plan.
Unfortunately, it is very common for health plans to deny funding for bariatric surgery for various reasons. But the thing is, any health plan contract signed since 1999 cannot have any kind of grace period to provide bariatric surgery, as long as it meets the ANS requirements mentioned above. That is, any denial of bariatric surgery coverage is abusive, as it denies mandatory coverage of the stomach reduction surgical procedure.
Need to fill the gap: The individual must keep in mind that obesity is considered by doctors to be a serious disease, and bariatric surgery is a procedure indicated only in cases where there is no other way out to improve the state of health. health. Therefore, it has urgency, as it affects the patient’s health and life, so that it falls within the 24-hour grace period for urgent procedures.
Contrary opinion of the expert doctor of the plan: some health insurance funds make use of the opinion of affiliated doctors who refuse the prescription made by the professional who accompanies the patient, so that this resistance induces the insurance company to deny the procedure. In doing so, the health plan commits an abusive act, because the choice of doctor is a right of the patient, and the health plan cannot deny surgery simply for disagreeing with the doctor’s opinion. Only the doctor accompanying the patient can define the treatment to be carried out.
Report of pre-existing illness: this justification is abusive, since the patient has been accepted by the health plan. Furthermore, as mentioned elsewhere, the case does not require the adoption of a large contractual grace period, other than the 24-hour deadline for urgent procedures.
Failure to comply with ANS requirements: ANS rules must be respected, but contain exceptions, as indicated in the text – such as, for example, exceptional cases involving minors. The ideal is that each case is treated with its particularities.
There are several sentences that recognize the abusive conduct of the health plan, denying bariatric surgery:
INTERMEDIATE APPEAL. CIVIL PROCEDURE. CIVIL. CONSUMER. HEALTH INSURANCE. HEALTH INSURANCE. COVERS. APPROPRIATE MEDICAL CARE. OBESITY. BARIATRIC SURGERY. DOCTOR’S PRESCRIPTION. TRIAL. RISK OF DEATH. OMISSION OF PRE-EXISTING ILLNESS. NO PROOF. TEMPORARY PARTIAL COVERAGE. ILLEGALITY.
1. The relationship established between a healthcare company that operates in a market open to the public in the marketing of its services and products with policyholders, who use its services and products as final recipients, is subject to the guidelines of the Code of Consumer Protection, in accordance with the provisions of art. 608 of the Precedent of the Supreme Court of Justice.
2. Health contracts must be based on the principles of solidarity, good faith and social function with respect to extreme situations that can directly affect the life of the consumer, who cannot remain powerless in the face of the urgency of indispensable treatments (bariatric surgery) in able to safeguard his life, since it is imperative that the consumer meets his legitimate expectations regarding the contract and the adequacy of the services provided by the health plan (Articles 18, §6, III; 20, §2; 47; and 51 , VI, all of the Consumer Code).
3. The healthcare professional cannot limit the freedom of the specialist doctor in charge of conducting the therapy suitable for the patient’s clinical case when the scientific methods are recognized as validated in the scientific field and permitted by current legislation and the refusal based on the assertion is undue that the consumer has not reported being affected by morbid obesity at the time of stipulating the health plan and that, having a pre-existing pathology, it is necessary to respect the Temporary Partialization period – CPT for bariatric surgery.
4. If the healthcare professional has not investigated the statements provided by the consumer and has adhered to the proposal signed by the insured, without verifying his actual state of health at the time of taking out the policy, the latter is required to bear the risk taken.
5. It is illegitimate to refuse coverage for bariatric surgery when the procedure is essential to the life of the healthcare user, as well as the obligation to respect the period of Partial Temporary Coverage – CPT, as it is a pre-existing illness when there are no measures have been taken to demonstrate this fact.
6. Known and unproven resource.
(TJDFT, Judgment 1369156, 07132419620218070000, Rapporteur: MARIA DE LOURDES ABREU, Third Civil College, date of the judgment: 08/31/21, published in the DJE: 09/20/21)
CIVIL AND CIVIL PROCEDURE. OBLIGATION ACTION TO MAKE INDEMNITY C/C. HEALTH INSURANCE. BARIATRIC SURGERY. SOFT OBESITY. OMITTED DECLARATION OF PRE-EXISTING ILLNESS. DISCLAIMER OF COVERAGE. ILLEGALITY. MORAL DAMAGE IN THE RES IPSA. ALLOWANCE. THE DEFENDANT’S APPEAL WAS DENIED AND THE PLAINTANT’S APPEAL WAS ACCEPTED.
- The jurisprudence of the Supreme Court of Justice is firm in the sense that “The health plan can establish the diseases that will be covered, but not the type of treatment used, the denial of coverage of the procedure, treatment, medicine or material considered being abusive essential for its performance as proposed by the doctor.” Incidence of previous 83/STJ. (AgInt at AREsp 1181628/SP, minister rapporteur Luis Felipe Salomão, fourth district, judged on 3/6/18, DJe 3/9/18)
- Previous 609 STJ: “The denial of insurance coverage, due to an alleged pre-existing illness, is illegitimate if there was no obligation for pre-contractual medical examinations or evidence of bad faith on the part of the insured”
- Pursuant to article 35-C, chapter I, of law 9.656/98, the coverage of treatments in “emergency” cases is mandatory, as such defined as those involving an immediate risk to life or irreparable damage to the patient, characterized by a statement from the attending physician”.
- The undue refusal of the health plan in re ipsa generates moral damage.
- Known civil appeals. Provided the author’s resource. The defendant’s appeal dismissed.
(TJDFT, Judgment 1379674, 07427129120208070001, Rapporteur: ANA MARIA FERREIRA DA SILVA, Third Civil College, date of the judgment: 10/13/2021, published in the DJE: 10/27/21)
CIVIL APPEAL. HEALTH INSURANCE. METABOLIC SURGERY. REJECTION. MORAL DAMAGE.
- The procedure of metabolic/bariatric surgery for the treatment of diseases that the author has is based on the Resolution of the Federal Council of Medicine 2.172/17, which extended the prescription for surgery in patients with type 2 diabetes from BMI 30kg/m2 .
- The lack of prior medical examination makes the refusal of health coverage for pre-existing pathologies illegitimate, as evidenced by the previous 609/STJ.
- The undue refusal by the healthcare professional to pay for metabolic surgery for the treatment of type 2 diabetes mellitus constitutes a moral offence, when a medical report demonstrates that the insured suffers from multiple comorbidities and that this is the best cure indicated to cure his diseases . In this case, the value fixed in r. sentence, BRL 5,000.00 (five thousand reais).
- The appeal was rejected.
(TJDFT, Judgment 1368117, 07038511220208070009, Rapporteur: SÉRGIO ROCHA, Fourth Civil College, date of the judgment: 08/26/2021, published in the DJE: 09/10/21)
We stress that health contracts must be based on the principles of solidarity, good faith and social function, so that the individual cannot find himself helpless in the face of the need for life-saving medical treatment, so that the health plan must comply with its contractual obligation to provide the necessary assistance (articles 18, §6, III; 20, §2; 47; and 51, VI, all of the Consumer Protection Code).
Furthermore, the healthcare professional cannot limit the freedom of the specialist doctor who accompanies the patient, if the suggested scientific methods are recognized as validated in the scientific field, and permitted by law. Therefore, the refusal is undue and abusive.
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