O direito fundamental à saúde e os impactos orçamentários da judicialização

Abstract

Starting from the backdrop of growing concerns surrounding the expansion and potential social implications of healthcare-related lawsuits in Brazil, a crucial question emerges: can the lens of Law and Economics enrich the legal decision-making process when it comes to finding fine solutions for upholding the fundamental right to healthcare? Judicial rulings on healthcare matters often lean towards microjustice, neglecting the broader costs of these rights. It's not uncommon for these issues to be framed as a clash between the plaintiff's right to healthcare and the budgetary constraints of the defendant. This approach not only transforms the right to healthcare into an absolute a priori principle but also overlooks the actual collision between an individual's right to healthcare and the collective dimension of this right. Given the hypothesis, drawn from a literature review, that the number of healthcare-related lawsuits are on the rise in Brazil and they impact public healthcare budgets, the overarching objective of this study was to examine the repercussions of judicial decisions on the public healthcare budget of the State of Bahia from 2018 to 2022. The research methodology primarily embraced a pragmatic approach, utilizing mixed research strategies (quantitative and qualitative) through data collection and analysis methods. The main sources of information were derived from the Conselho Nacional de Justiça and Portal Dados Abertos Bahia. From this empirical phase, it became evident that judicial decisions significantly affect the public budget allocated to healthcare in Bahia. Moreover, the rate of new legal actions in the state has been outpacing the national average. Interestingly, despite this trend, the Northeast region of the country ranks among the regions with the lowest per capita healthcare budgets in the country. While the Judge's disregard for the costs of the right to healthcare is seen as detrimental to the collective dimension of this right, there's a suggestion that the consequentialist perspective offered by Economic Analysis of Law could pave the way for a more nuanced judicial approach.