Cardona, Luisa y otros v. Summum Medicina Privada S.A.

Judgment No. 90/2009; IUE: 2-25422/2009
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This case involved plaintiffs (parents of a minor) who filed a writ for protection of fundamental rights (amparo action) against a private insurance company (the defendant), claiming that their infant had a right to receive a milk substitute health supplement called Neocate, financed by the private medical insurance company.  The plaintiffs waited for four months to file the amparo action after learning the defendant’s refusal to provide Neocate . The plaintiffs had claimed that doctors explained to them that  the infant could die if it was not for the supplement as the infant was unable to ingest cow or soy milk.  However, the plaintiffs were not able to provide any written documentation supporting their argument. The plaintiffs did not resort to the Consumer Defense Office first to obtain a decision supporting their stand that it was necessary for the infant to take the supplement. They also accepted proposal from the medical insurance company to subsidize part of the cost of Neocate, before filing the amparo.

The defendant filed an appeal against the amparo on grounds that, the judgment failed to declare a clear expiration of the statute of limitations (because the term of 30 days from the moment that the plaintiffs had had knowledge of the harmful act had passed); the plaintiffs did not use other means of protection, such as resorting to the Office of Consumer Defense of MSP to obtain a pronouncement that “Neocate” was included in the FTM – Annex IV; the record (of the litigation) did not have proof that the nutritional supplement was effectively included in the said Annex and the defendant had the obligation to provide it under the mode of tickets; and there was not any unlawful conduct whatsoever.

The Court overturned the decision issued by the lower court in its review of the amparo, arguing that the lower court’s judgment :

a) did not declare the clear expiration of the statute of limitations, as it should have, because the term of 30 days from the moment that the plaintiffs had had knowledge of the harmful act had passed by the time  the plaintiffs filed their claim. The Court found that the fact the harm was continuing did not extend the statute of limitations, which had  commenced at the moment which the plaintiffs learned of the defendant’s omission in providing Neocate. The Court further pointed out that, the fact that the plaintiffs waited for four months prior to filing their claim belied their argument that the danger to their infant’s life was immediate--and such urgency was central to a successful amparo claim;

b) the plaintiffs did not use other means of protection, such as resorting to the Office of Consumer Defense of MSP to obtain a pronouncement that “Neocate” was included in the annex with the medicines that the private medical insurance covered or that it was necessary for the child’s subsistence; and

c) that the record did not have evidence that this nutritional supplement was effectively necessary and as such, there was no basis to issue the judgment in favor of the plaintiffs.

”The Tribunal has indicated: “There is no claim that the continued nature of the omission imputed to the defendant precludes a declaration that the statute of limitations has expired, since the harmful matter invoked has not ceased and thus, it is not feasible for one to compute the term of the statue of limitations. The Chamber holds case law that indicates that an initial harmful affectation enables a jurisdictional claim, because one can claim compensation for damages caused from the time that existence of the omission is known, and its harmful effects. “ Section IV

“Ha indicado el Tribunal: "Tampoco se comparte que el carácter continuado de la omisión que se imputa a la demandada obste a la declaración de caducidad por no haber cesado la eficacia lesiva que se invoca y por resultar por ende inviable computar el plazo de caducidad. La Sala mantiene jurisprudencia indicativa de que la inicial afectación lesiva habilita ya la reclamación jurisdiccional, porque desde que se conoce la existencia de la omisión y de sus efectos perjudiciales, puede pretenderse la indemnización de los daños causados.” Sección IV

 

“Nonetheless, [the plaintiffs] adopted a passive conduct that does not evidence the urgent situation that the current claim supports, in which the plaintiff claims that there is a danger to the life of the minor child- urgency that is inherent to the institution of amparo. …. However, there is no urgency in this particular situation, because, if there was one, a fourth month delay to resort to tribunals and seek the protection of the fundamental right said to be violated is not justified. … If an effective aggression or threat to harm the minor’s right to health had existed, the claim should have been filed prior to the end of April.” Section IV

“Sin embargo, adoptaron una conducta de pasividad que no condice con la situación de urgencia que sustenta la actual pretensión en la que se aduce peligro de vida, incluso, para la menor, urgencia, por lo demás, inherente al instituto del amparo. Ocurre que en la particularísima situación planteada en autos tal urgencia no existe, pues de haberla no se justifica la dilación de cuatro meses en acudir ante los tribunales procurando la tutela del derecho fundamental que se dice vulnerado. De haber existido una efectiva agresión o amenaza de lesión del derecho de la salud de la menor, antes de fines de abril se hubiera deducido la pretension” Sección IV

 

“We can hence conclude that, in addition to being untimely, the claim fails to show clear absence or inefficacy of other routes for protection, or the requirement to certify the manifest unlawfulness of the defendant’s conduct; elements that, in the constitutional and legal regime of amparo determine that the instant case cannot prevail; and thus we believe that the judgment issued by the first instance is unfounded.” Section VI

“Cabe entonces concluir que además de intempestiva, la pretensión no cumple con la demostración de inexistencia o clara ineficacia de otras vías de protección, ni con el requerimiento de acreditar manifiesta ilegitimadad de la conducta de la parte demandada; elementos que en el regimen constitucional y legal del amparo determinan que el de autos no pueda prosperar; estimándose infundada la condena recaída en primera instancia.” Sección VI

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