Cancer: MPF asks for compensation for delay in treatment – 06/19/2023 – Health

Upon being diagnosed with bone cancer in December 2021, a resident of the interior of São Paulo discovered the obstacles in front of her to treat the disease. Starting with the radiotherapy machine, at the time inoperative at the State Hospital of Bauru (329 km from the city of São Paulo), where she was interned.

The patient was only able to start the radiotherapy sessions about three months later, and only after intervention by the Federal Public Prosecutor’s Office (MPF), to whom she appealed.

Based on the drama of that woman, who died in early 2023, the Attorney General’s Office filed a lawsuit against the Government of São Paulo and against the Ministry of Health, seeking compliance with a law that obliges the SUS (Sistema Único de Saúde) to initiate cancer treatments within 60 days after diagnosis of the disease, which must be done within 30 days.

The Secretary of Health under the management of Tarcísio de Freitas (Republicans) says that currently all patients who are under the management of state regulation of vacancies are referred to consultations and treatments within 60 days.

Contacted three times by email and by telephone, the Ministry of Health, under the Lula administration (PT), did not respond to the report.

The advice of Rodrigo Garcia (PSDB), who was in government when the lawsuit was filed in court, says he has implemented AME Oncologia. The program, in the 61 units of the state, he says, reduced the treatment from 90 to 45 days in the case of bowel and skin cancer, for example. “In addition, there was the implementation of radiotherapy and chemotherapy services in reference hospitals in each region.”

Among others, the MPF’s action requires the Union to adopt, within 90 days, measures for the proper recording of data from patients diagnosed with cancer. The same deadline is given for the São Paulo government to impose control and transparency on queues for cancer treatment.

The lawsuit also demands that the names of all SUS users who, since the entry into force of the law in 2012, died with a diagnosis of cancer after delay in starting treatment be identified and informed.

For each of these patients, the MPF wants the São Paulo and federal governments to be condemned to pay compensation for collective moral damages in an amount not less than R$ 100,000.

The institution requires compensation of at least R$ 50,000 per SUS user in São Paulo who did not have access to cancer treatment within a maximum period of 60 days and that the Union and the state of São Paulo pay at least R$ 10 million in compensation, if cannot identify all cancer patients whose rights to treatment have been violated.

In the process, the Public Prosecutor Pedro Antonio de Oliveira Machado states that in 2019 about 18.5 thousand cancer patients in the state (18.6% of the total cases treated) waited more than 60 days to start fighting the disease and that there was no information about almost 50 thousand people (45.22%).

The MPF says it does not have updated data and that it will not manifest itself at this stage of the process, which demands more transparency in the disclosure of queues.

According to the Department of Health in São Paulo, on January 1, when Tarcísio’s administration began, 1,536 cancer patients were waiting in line for up to eight months —when asked about the number, the advisory of former governor Rodrigo listed actions that reduced the time for diagnosis and treatment treatment.

Earlier this month, the Sheet showed that patients diagnosed with cancer who seek the health network in São Paulo are not seen in 60 days — the city hall says that the time is 59 days. The four people interviewed only had their appointments scheduled after contacting the report, at state institutions, and even then in a longer time than stipulated by law.

The MPF points out in the judicial process that the registration and monitoring of cancer cases in Brazil have not been done correctly, due to the lack of an official tool for registering the information.

“It is frighteningly dramatic to see that some neoplasms had 46% of patients waiting for treatment to begin in more than 60 days in 2019 [pré-pandemia de Covid-19]”, writes the prosecutor in an excerpt from the court piece.

The action was filed in December 2022 at the 3rd Federal Court of Bauru and sent to the capital of São Paulo. Currently, Justice has been coordinating an attempt at conciliation between the Attorney General’s Office, the state government and the Ministry of Health. Since February, there have been three conciliatory hearings.

Professor Maria Cecília de Araujo Asperti, from FGV Direito in São Paulo, says that the conciliation approach adopted in the process is adequate, as it is a complex case. However, in her view, Justice should have demanded the adoption of measures, such as setting deadlines for disclosing the size of queues. “You can’t keep doing a year of meetings”, she says.

Asperti talks about the affliction of cancer patients with knowledge of the facts. The 37-year-old lawyer is in the final stages of treatment for breast cancer and says she has not taken her case to court just because of a lack of mental strength, due to the disease – it took her seven months to get her health plan to pay for a medication . The operator considered it unnecessary.

Doctors warn about the importance of starting treatment as soon as possible. “Many with curable tumors, due to delay or lack of equipment, lose a window of cure”, says Fernando Maluf, oncologist and founder of Instituto Vencer o Cancer.

In a note, the Secretary of Health says that since January it has been in dialogue with the Ministry of Health so that there is an increase in the oncological ceiling (R$ 685 million per year in the state), in addition to the qualification of new beds and services. São Paulo asks the federal government to increase the resource to another R$ 415 million.

The Tarcísio de Freitas government (Republicans) also claims to have expanded the operating rooms and hospital beds and ICU and that throughout the state the offer of vacancies in the specialty grew by more than 20%. In the first hundred days of this year, he adds, more than 24,000 cancer patients were treated within the legal deadline. Regarding the action in court, the folder reinforces that conciliation hearings are being held.

What does the action require?

• Condemnation of the federal and state governments, jointly and severally, to pay compensation for collective moral damages, off-balance sheet or social damages, in an amount not less than R$ 100,000 per SUS user who died, with a diagnosis of cancer/malignant neoplasms, which did not start treatment within a maximum period of 60 days, counted from the day of diagnosis
• Condemnation of the federal and state governments, jointly and severally, to pay compensation for collective moral damages, off-balance sheet or social damages, in an amount not less than R$ 50,000 per SUS user, diagnosed with cancer/malignant neoplasms, who did not start treatment maximum period of 60 days, counted from the day of diagnosis
• Condemnation of the federal and state governments to pay compensation for collective moral damages, off-balance sheet or social damages, in an amount not less than R$ 10 million, if it fails to identify all SUS patients/users, in the form of the two previous paragraphs
• That the Union adopt, within 90 days, measures to reactivate the Siscan treatment module (Cancer Information System, of the Ministry of Health) or institute another reliable and compatible system, allowing the adequate recording of data from patients diagnosed with cancer
• That the state of São Paulo imposes, in 90 days, control and transparency on the SUS queues, whether through the Central for Regulation of Health Services Offers (Cross) or another system, guaranteeing priority to cancer patients in consultations, tests, surgeries, chemotherapy and radiotherapy

What does the law say

The patient with malignant neoplasm has the right to undergo the first treatment in the SUS, within a period of up to 60 days from the day the diagnosis is confirmed in the pathological report, or within a shorter period, according to the therapeutic need of the case recorded in the medical record. single

• For the purpose of complying with the stipulated period, the first treatment of the malignant neoplasm is considered effectively started with surgical therapy or with the beginning of radiotherapy or chemotherapy, according to the therapeutic need of the case.
• Patients affected by painful manifestations resulting from malignant neoplasm will have privileged and free treatment, regarding access to prescriptions and dispensation of opiate analgesics or related
• In cases where the main diagnostic hypothesis is that of malignant neoplasm, the tests necessary for elucidation must be carried out within a maximum period of 30 days, upon reasoned request from the physician in charge
• Failure to comply with this law will subject managers directly and indirectly responsible to administrative penalties

how to get help

Patients with a diagnosis of cancer who have difficulty obtaining medical care can go to court to try to enforce the 60-day law

São Paulo Public Defender’s Office

R. Boa Vista, 150, downtown

• Click here to book online, on weekdays, from 8 am to 6 pm
• By phone 0800 773 4340, on weekdays, from 7am to 7pm

Other places offering legal advice

• Click here and see legal support entities listed by OAB-SP in all regions of the capital