Grupo OSDE

Francisco Clucellas

Judicialization Policy Voice

During the last three decades, various Latin American countries have seen an exponential increase in lawsuits related to the coverage of medications and medical treatments. A key factor in this trend is the pressure exerted by the pharmaceutical and medical supply industries, which seek to rapidly introduce new products and services into the market—often by encouraging patients to file lawsuits to secure coverage.

Argentina’s experience is particularly illustrative. After more than 15 years of litigating numerous medical service coverage cases, I have observed the complex interplay among different actors in the country’s healthcare system.

In Argentina, the population can access healthcare services through two systems:

1) Private System: Through an “Obra Social” (similar to employer-sponsored insurance) or an “Empresa de medicina prepaga” (similar to an HMO), whose resources come from the mandatory contributions of all formally employed workers or from the private purchase of a healthcare service.

2) Public System: Through the coverage the State provides for individuals who neither work nor purchase a healthcare service.

“The growing trend of judicializing healthcare in Argentina is fueled by industry pressures, pushing patients to seek court-mandated coverage for high-cost treatments—often without sufficient scientific evidence of their cost-effectiveness”

In the private system, obras sociales and empresas de medicina prepaga are subject to regulations that specify which medications and treatments they must provide. These regulations, which I call “healthcare legislation,” serve as the regulatory framework for these private entities.

In contrast to the private system, the public system does not have specific healthcare legislation that explicitly details the health services it must cover. Instead, the State has a constitutional mandate to guarantee the right to health for the general population.

It´s essential to specify the extent of this constitutional mandate and how to balance the potentially unlimited demand for healthcare services with limited resources. In this context, the pressures exerted by the medical industry become highly relevant: it frequently motivates patients to bring lawsuits against the private system entity of which they are users to compel coverage for medications or treatments not included in the healthcare legislation.

These claims should be directed towards the State, given its role as the constitutional guarantor. Yet, in practice, the Judiciary often orders entities of the private system to cover services not listed in the legislation, arguing that health is a fundamental human right enshrined in the Constitution. This judicial interpretation creates uncertainty for “obras sociales” y “empresas de medicina prepaga”, which are forced to pay for medications or health treatment services not accounted for in their financial planning; since these medications or medical treatments are not included in health legislation, it´s impossible to anticipate the possibility of being required. As a result, the entities in the private system” end up operating “in the dark” without legal clarity on their coverage obligations should new healthcare technologies, medications, or high-cost treatments emerge.

There is another critical angle to consider. No country, regardless of its wealth, can fully meet all of its citizens’ healthcare needs. Both public and private funds are inherently limited when faced with an almost infinite potential demand for health services.

International organizations such as the United Nations acknowledge this limitation in the International Covenant on Economic, Social and Cultural Rights, whose Article 12 stipulates the right of every individual to the highest “possible” standard of physical and mental health. It is worth remembering that the word ‘possible” reflects an awareness of the economic disparities among countries and the impossibility of requiring the same coverage level from nations with vastly different resources.

Expecting a developing country to provide the same healthcare services as a highly industrialized one is impractical and unsustainable. Yet, in Argentina, several court decisions appear to be disregarded. Economic resources are always limited by compelling any entity—public or private—to finance health services that, even though it may not be included in healthcare legislation or, what is worse, there is no sufficient scientific evidence regarding cost-effectiveness.

Considering what has been said so far, it is necessary to clearly define not only the scope of the obligations of both the private and public health systems but also the position the State will take in response to the constant pressure exerted by the medical industry to introduce new technologies into the market, regardless of their cost-effectiveness.