QCOSTARICA – A claim made by a family against the Caja Costarricense de Seguro Social (CCSS) to pay for the stay of a patient with covid-19 in a private hospital, did not prosper in the Sala Constitucional (Constitutional Court), more commonly referred to Sala IV.
The appeal filed was intended for the CCSS to assume the costs from the moment they requested transfer of the patient to a public hospital and it was not possible at that time due to lack of space.
The appellants alleged before the magistrates that the refusal to transfer violated the right to health of the patient, a 73-year-old man with the last name Núñez Rivas.
However, after a review of the facts since the affected person presented symptoms, the judges declared the appeal without cause.
According to the ruling, not only was there no violation of the right to health, but it was the patient himself who refused to receive medical attention from the CCSS at first.
“Under this set of circumstances, this Constitutional Court does not find an element in the actions of the defendants, which has entailed a threat or injury to the right to health of the protected person,” says the ruling.
“The denial of the transfer was not due to any arbitrariness,” adds judgment No. 2021020507.
He was refused attention
The case dates to August 15, when the man with the surnames Núñez Rivas, went to the Emergency Service of the Calderón Guardia Hospital, a fact that was not reported by the family in the appeal for protection, but by the CCSS in its response.
According to the information of the court filing, at 10:14 pm on that day, the patient was treated by the Emergency Physician Gerson Gadiel Araya Jiménez.
The records of the file indicate an aggressive attitude of the patient.
He is not vaccinated. The patient indicates that he did not want to be vaccinated nor is he going to be vaccinated since, as he indicates, “it is a phase 3 study that does not work, I will not vaccinate until it is real,” the ruling cites, according to the file.
And it adds: “Patient flatly refuses to take the covid-19 test, claiming that ‘I am not going to take the test since that does not work, in itself, they are told that they are positive even though they are negative. I’ve already done a lot of research on the Internet, so they can’t force me”.
“It is about explaining the risks to the patient of what he is doing, to which he himself is disturbed by speaking loudly and speaking aggressively beaten, indicating that they cannot force him to undergo the test, since it is not covid ‘because I’ve done a lot of research, what I have is a sore throat’”.
At 10:57 pm, according to the file, he is offered the covid text again and insists that he cannot be compelled.
At 11:09 pm he went looking for him, but he is not found in Emergency. He is located near a rest awning, where he was shouting that they could not have him out in the open and that he demanded to be treated. Security personnel were alerted
At 11:14 pm the nursing staff reports the man is belligerent, using foul language towards the staff that approaches him, looks downright run-down, “with an ineffective ventilatory pattern”.
The nursing staff report indicates the man is provided extensive information on his condition, however, “he becomes aggressive and refuses to receive medical attention. He calls relatives. He contacts his wife and she agrees to take him from the hospital”.
The ruling indicates that care could be provided at that time, but was denied by the patient. The following day, August 16, the patient was taken by his family to the private hospital, La Católica.
Family version
The version of events presented by the family to the court excluded the Calderón Guardia hospital situation. According to the appeal, filed on September 3, this Coronado neighbor showed symptoms of covid-19 on August 16 and went to La Católica Hospital to perform a diagnostic test for the virus.
The family makes the decision to admit him to said medical center until he is stabilized and his oxygenation is restored. According to the allegations, they expected an internment of two to three days, but due to complications the hospitalization was prolonged, he required intensive care and a wide range of medications. By the time the appeal was filed, the family had racked up ¢43.6 million (US$70,00 dollars) in medical care.
For two weeks a transfer to a CCSS medical center was impossible. His delicate condition prevented it. The family indicated that since August 31, attempts were made to transfer to a public hospital, but these were denied because there was no space available in intensive care in any public center.
On September 6, a bed in the Specialized Center for the Care of Patients with Covid-19 (Ceaco), in La Uruca, became available.
For this reason, Nuñez’s relatives asked the Caja to pay the man’s medical bills, alleging that his right to health had been violated.
In response, the Court received information from the CCSS, the request for a transfer from the private hospital as received on the morning of September 2, but denied due to lack of space. Another request was made later in the evening and there still was no space.
The patient’s situation was critical and the levels of care required were highly complex, the CCSS response noted.
“At the time of presenting the case, there was a collapse of the hospital beds and the treating physician at Hospital la Católica was instructed to transfer him to an emergency service (where all Covid patients have entered the Caja), and there is no record that the Catolica doctor carried out this coordination (…),” said Mario Ruiz, medical manager of the CCSS, to the magistrates.
On September 6, finally, Núñez was transferred to the Ceaco.
The Court concluded: “It is clear, then, that the denial of the transfer was not due to some arbitrariness, but to an objective reality such as the hospital saturation generated by covid-19.”
For the magistrates, having a bed at the Ceaco four days after the petition is a reasonable time.
Costa Rica’s Constitutional Court
Often called the Fourth Court, the role of the “Constitutional Court” is to oversee protection of the fundamental rights enshrined in the Constitution and international law instruments ratified by Costa Rica, so as to ensure that these standards are met.
This Court is in charge of protecting and preserving the principle of constitutional supremacy whereby no rule, treaty, regulation, or law within our legal order may be contrary to the Constitution.
The Court provides services 24 hours a day, all year long, so that it can receive petitions (appeal or recurso de amparo in Spanish) at any time.
It is located on the first floor of the Supreme Court building in San José. Filing of an appeal can be me informally, even had written on a napkin, by anyone with or without a lawyer, and at any time.
Important note: It is not necessary to know the specific right that is being affected. For the Constitutional Court, it is sufficient to describe the situation as it was and it (the Court) will be in charge of determining the right.
