Case 687/2000-R

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After her body rejected a kidney transplant, Rocio Mercadeo Zimerman began hemodialysis treatment with the National Health Fund (the “Fund”) on June 6, 1995. The treatment was authorized to continue for one year, but was discontinued on May 18, 1996 after Zimerman’s health was stabilized because of a new, successful kidney transplant. In March of 2000, Zimerman again required hemodialysis but was denied compensation for the intervening period. The National Commission for Benefits transferred her to the Ministry of Health and Social Welfare (the “Ministry”). At the time of the hearing,  Zimerman was undergoing hemodialysis without social security.

Zimerman alleged that she was an active contributor to the social security system, that her hemodialysis treatment was essential to her survival, that she did not have the funds to cover the cost of the treatment and that her transfer to the Ministry was intended to limit the State’s responsibility to provider her treatment. Zimerman sought compensation from the Fund for the period between her second transplant and March 2000, as well as reinstatement as a patient under the social security system.

After the first hearing, the Social and Administrative Chamber of the Superior Court of the First District of Law Paz ruled that the Fund’s refusal to continue treatment violated the patient’s rights to life, health, and social security and that the Ministry also failed to provide the protection which it is constitutionally mandated to provide.

The Constitutional Court affirmed that the lower court’s decision that the Fund must provide compensation and reinstate the patient under the social security regime. It noted that the right to life was the most important right guaranteed by the Constitution, and the State must not take any action that would damage this right.

The Court considered that the Fund was tasked with ensuring the protection of such right to life, under the Social Security Code and its own regulations. It was the duty of the Ministry to ensure continuation of this protection.

The Court noted that treatment for the chronically ill should not be interrupted by administrative decisions which transfer responsibility and costs between public entities and therefore held that the Fund could only discontinue treatment for a chronically ill patient if the Ministry was equipped to continue the necessary treatment. Moreover, the Court determined that a prior order of the Court which required the Ministry to provide Zimerman with immediate and effective health protection had been violated, which also resulted in a breach of Zimerman’s right to health and life.

“...the right to life is the most important legal entitlement of those enshrined in the Constitution, and it heads the list of fundamental rights stipulated in art. 7. It is the right of every person to be and exist. Its essential characteristic is that it is the basis for the exercise of other rights, as life itself is the indispensable prerequisite to possessing rights and obligations.” [Page 4]

“The protection of these rights, the medical care of policy-holders with chronic illnesses, is, in the first phase, the responsibility of the National Health Fund, within the timeframe established by art. 16 of the Social Security Code, and 39 and 40 of its regulations, and the continuation of the treatment is the responsibility of the Ministry of Health and Social Welfare, in accordance with art. 11 of the D.L. 14643.” [Page 4]

“From the provisions referred to, it can be inferred that the treatment of the chronically ill requires the provision of immediate and continuing medical attention, and should not be interrupted by paperwork and administrative decisions that ultimately determine the transfer of responsibility for the supply and cost of treatment that passes from one public entity to the other, such as the National Heath Fund to the Ministry of Health and Social Welfare. The Ministry is responsible for the protection of public health, and should provide adequate medical care by means of other heath centres where this is the appropriate course of action, and only in this case can the National Health Fund suspend the treatment, regardless of the effect of any discontinuity of the treatment on the life and health of the patient.” [Page 4]