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The 7th Civil class of the TJ/DF upheld a decision that condemned the Federal District to compensate a newborn and their parents for failure to provide medical care. The decision readjusted the value established in the first instance and set, as moral damages, R$80 thousand for the newborn, R$25 thousand for the mother and R$20 thousand for the father.

 

According to the process, on 4/4/16, the mother noticed the lack of fetal movement and sought hospital care. At the time, she was advised to return home, as there was no risk. However, on the same day, she sought care at a private clinic and, after an imaging exam, she was advised to seek care immediately, at risk to herself and the baby, as there were signs of loss of amniotic fluid.

 

Upon arriving at the hospital, the woman was admitted, but soon after was transferred to another hospital. Therefore, she only underwent a new imaging exam, on 5/4, when she underwent a cesarean section. She states that the delay in diagnosis meant that her son was born in a serious state of health and that there was a request for admission to a bed in the NICU - Neonatal Therapy Unit, but the place was only made available three days later. Finally, she claims that her son was diagnosed with cerebral palsy caused by the failure to provide care.

 

In the appeal, the Federal District argues that the care provided at the public hospital was adequate and that the delay in admission to the NICU did not worsen the newborn's situation, which rules out the cause and effect relationship between the treatment received and the damage suffered by the child. It maintains that medical error must be assessed to demonstrate the guilt of the public administration.

 

Newborn and family will be compensated for failure to provide medical care. 

In the decision, the rapporteur considered the transfer of the pregnant woman unnecessary, as the former is a reference in care for women in labor. Furthermore, the judge highlights that the woman was treated properly at the hospital only the morning of the following day and that, according to the expert, her case was serious and required constant evaluation.

 

Finally, the DF Court highlights that the woman had an imaging test carried out in the private network that indicated a reduction in amniotic fluid and that the service provided only in the morning, after the shift change, indicates that it did not occur properly. Therefore, for the rapporteur, "the requirements inherent to responsibility, whatever the negligent conduct of the administration and the causal link between this and the moral damage suffered, have been demonstrated."

 

Law 9,656/98

STJ: Hospitalized newborn plan must be maintained after 30 days

The collegiate understood that, although law 9,656/98 provides for coverage without registration only for the first 30 days after birth, the rights of those undergoing treatment must be protected.

 

The 3rd panel of the STJ upheld a ruling that ordered a health plan operator to provide care coverage for a newborn who underwent hospitalization after the 30th day of birth, even though he was not registered as a beneficiary in the contract.

 

The collegiate understood that, although law 9,656/98 provides coverage without registration only for the first 30 days after birth, the rights of beneficiaries who are undergoing treatment or hospitalized must be protected.

 

The mother is dependent on the health plan and, shortly after giving birth, the newborn underwent heart surgery, requiring hospitalization for a period of more than 30 days. She filed a lawsuit against the operator to maintain coverage until discharge. The request was granted in the first instance and confirmed by the TJ/SP.

 

STJ: Plan must maintain prolonged hospitalization for non-registered newborns. 

Ongoing hospitalization

 

The rapporteur, Minister Nancy  explained that article 12, III, a, of law 9,656/98 establishes a guarantee of assistance coverage for the newborn, natural or adopted child of the consumer, or their dependent, during the first 30 days after the birth. After this period, the minor is enrolled as a dependent in the plan, exempt from waiting periods (article 12, III, b, of law 9,656/98).