A judicialização da saúde e a utopia dos direitos fundamentais.

Abstract

This monograph, under the hermeneutical method and field research, has as primordial to analyze the huge number of lawsuits entered in the judiciary in order to protect the right of citizens' health for the purpose of compelling the State to provide products and pleaded services. From the promulgation of the 1988 Constitution, the Brazilian citizens have become to be rights holders in relation to health, supervening organic laws to organize health policy, as the law 8080/90, 8142/90 and 7508/11, among others, at which the National Health System was created. Considering the relevance of the topic for being increasingly discussed in the Brazilian courts generating a large number of lawsuits, with the same demands, we intend to analyze and expose the doctrinal and jurisprudential positions, as well as the field research conducted in order to bring the work of the legal reality. This study evidences the position of the judges, associate judges and ministers on the subject, which is unequivocal in expressing thearticle 196 of the Federal Constitution, establishing the duty of the State to protect the citizens in need of health care. The high cost of the State regarding the lack of budget organization and effective public policies remains clear, ending up becomingthe search of citizens for their right to health, life and human dignity more bureaucratic, what can make this framework irreversible or difficult to repair. This study also analyze the State arguments about the plea and reinforces, pragmatically, through the collected process data that transact in the federal and state justices the result of these health demands, in sum, it has a clear understanding of the constitutional right of the citizens and the obligatory duty of the State.