The judicialization of healthcare increased by 130% in ten years in Brazil, while the overall volume of lawsuits grew by 50% in the same period, according to data from the CNJ (National Council of Justice) reproduced by research from Insper.
The field continues to grow. And the profile of the demands has become radically more complex: Binding Precedents 60 and 61, published by the Supreme Federal Court in September and October 2024, inaugurated a new phase, in which the outcome of the action depends increasingly on those who know the technical and legal framework of the field, and less and less on those who simply know that the right to health is guaranteed by Article 196 of the Constitution.
The future of litigation, as recent legal literature observes, will not be one of fewer lawsuits. It will be one of technically qualified litigation. Those who do not qualify will occupy this space in an increasingly precarious way.
I've prepared seven practical tips for those who work in the field or are seriously considering entering it.
1. Master Binding Precedents 60 and 61 before filing any lawsuit involving medications through the SUS (Brazilian Public Health System).
Binding Precedents 60 and 61, published by the Brazilian Supreme Court in September and October 2024, have substantially changed the landscape of public health litigation.
SV 60 stipulates that requests for and analyses of medications within the public health system, and their administrative and jurisdictional ramifications, must comply with the terms of the three inter-federative agreements approved by the Supreme Federal Court in Topic 1.234 (RE 1.366.243).
SV 61, in turn, regulates the granting of medicines registered with ANVISA but not incorporated into the SUS, referring to the criteria of Topic 6 (RE 566.471).
Anyone who files a lawsuit for the provision of medication without verifying whether the drug is on the CEAF list, whether the annual cost exceeds 210 minimum wages, and whether the filing date is before or after September 19, 2024, will be wrong about the defendant, wrong about the competent court, and will probably receive a constitutional complaint in the middle of the process.
2. Know exactly when the Union needs to be on the passive side.
The single-judge decision of August 21, 2025, in RE 1.366.243/SC, reaffirmed the mandatory observance of the inter-federative flows consolidated in Binding Precedent 60, in view of the significant increase in constitutional claims related to Binding Precedents 60 and 61.
The deadline for transferring jurisdiction is September 19, 2024, the date of publication of the merits judgment in the Electronic Official Gazette.
Lawsuits filed after this date, involving unincorporated drugs whose annual cost is equal to or greater than 210 minimum wages, must include the Federal Government and be processed in Federal Court. Lawsuits filed before this date follow the rules of state jurisdiction.
For the purposes of jurisdiction and the formation of the passive party, the allegation that the annual cost of treatment would be less than 210 minimum wages is irrelevant when there is an approved inter-federative agreement that classifies the medication as centrally acquired (Group 1A of CEAF) and assigns the Union the responsibility for its cost and acquisition.
Making a mistake regarding the defendant in this area is not a minor procedural error. It generates a constitutional complaint, a change of jurisdiction, and the need to restart the process. The client pays this cost with time and health.
3. Treat NAT-JUS as a strategic tool, not as a surprise.
By January 2025, the e-NatJus system had accumulated more than 272 technical reports. This means that, for the vast majority of treatments and medications that reach the Judiciary, a technical opinion already exists.
Lawyers who don't consult e-NatJus before filing a lawsuit are entering the process without knowing what technical support the judge will receive.
If the existing opinion is unfavorable to the requested treatment, the petition must anticipate and refute this understanding with clinical protocols, international guidelines, and scientific evidence that supports the medical indication for the specific case.
If the decision is favorable, it should be included as a document with the initial filing.
NAT-JUS does not eliminate the role of the lawyer. It only makes the role of the lawyer who is unfamiliar with it more expensive.
4. Understand the practical difference between litigating against the plan and litigating against the government.
These are two fields with distinct logic, and treating them both the same way is a diagnostic error.
In the supplementary health insurance sector, the conflict is contractual with a constitutional dimension. The insurer has a contractual, regulatory (Law 9.656/1998, ANS regulation) and, in many cases, legal obligation to cover the treatment.
The sector recorded a 112% increase in lawsuits between 2020 and 2024, reaching 298.755 new cases in 2024. The procedural strategy focuses on demonstrating the causal link between the coverage due and the wrongful denial, with an accumulated claim for moral damages when the denial caused documentable harm.
In public health, the dispute is one of service provision with a federal dimension. The passive solidarity of the entities (Topic 793/STF) expands the options for compliance, but requires care in choosing the defendant and identifying the component of the SUS (Brazilian Unified Health System) responsible for the requested medication. Filing a lawsuit against the municipality when the obligation lies with the Union is a waste of time that the client does not have.
5. Never confuse rhetorical urgency with periculum in mora documented
An emergency injunction in healthcare is not granted simply because the lawyer wrote that the situation is urgent. It is granted when the judge can see, in the documents submitted, a concrete risk of irreversible harm during the waiting period for a judgment on the merits.
This requires: a recent medical report describing the clinical picture and prognosis without treatment; a prescription specifically indicating the drug, dosage, and frequency; a document evidencing the formal refusal and the date it occurred; and, when possible, a statement from the attending physician regarding the therapeutic window.
The average time for the first injunction in public health cases is 19 days, according to the CNJ 2025 Diagnosis. In some courts, this timeframe drops to three days. The difference is not only structural: it lies in the quality of the initial petition.
6. Understand the logic of "deny first" to use it against the operator.
When the institutional design makes the initial denial "cheap" and approval "expensive" only if there is a challenge, it creates a perverse incentive for some cases to be resolved only after escalation, increasing complaints and litigation even in a profitable scenario.
This logic has a name and address. Eighty-point-eight percent of administrative complaints (NIPs) registered with the ANS between January and October 2025 were related to healthcare, that is, linked to restrictions and denials of coverage.
For the lawyer, this means that the refusal is rarely a mistake: it's strategy. And strategy has specific legal consequences.
A refusal based on an abusive clause is grounds for compensation.
The refusal to postpone urgent treatment constitutes grounds for material and moral damages with an identifiable causal chain.
Repeated refusal after a favorable preliminary injunction is grounds for a fine for non-compliance and, in extreme cases, criminal liability.
Those who understand the logic behind the denial can litigate beyond simply requesting coverage. Those who don't understand are left with the bare minimum that the case allows them to claim.
7. Specialize now, before the field closes to those who arrive without training.
The judicialization of healthcare will continue to be a fundamental tool for realizing the social right to health, but it is undergoing a process of technical and legal sophistication.
Binding Precedents 60 and 61, Topics 793, 1.234 and 1.237, and the structural growth in demands related to ASD, oncology, and high-cost medications are creating a field with increasingly higher technical requirements.
The future will involve technically skilled litigation, and this skill will depend almost exclusively on advancements in specialized training for lawyers.
Anyone entering the field now with a solid education will be competing with professionals who are still learning on the job, without a complete roadmap. This advantage is short-lived: when the field matures and specialized players dominate the market, entering without training will be much more expensive.
The LLM in Health Law from IDP
The seven pieces of advice above have one thing in common: they all require technical expertise that goes beyond civil procedure and consumer law. They demand an understanding of the regulatory framework of the ANS (National Agency for Supplementary Health) and CONITEC (National Commission for the Incorporation of Technologies in the Unified Health System), the structuring Binding Precedents, the functioning of NAT-JUS (Nucleus for the Assessment of Legal Advice), precedents in medical civil liability, and the contractual and regulatory logic of the health plan market. None of this content is acquired through isolated reading of case law. It requires systematic training.
The IDP's LLM in Health Law was structured for this professional.
The program covers the constitutional and regulatory foundations of the healthcare system, supplementary healthcare and its contracts, judicial protection of patients and appropriate methods for resolving healthcare disputes, professional responsibility and bioethics, data protection and artificial intelligence applied to the sector, and Global Health Law with governance and intellectual property.
The faculty includes Dr. José Toro, post-doctoral fellow in Law and vice-president of the Medical and Health Law Commission of the OAB/SP (São Paulo Bar Association); Henderson Fürst, post-doctoral fellow in Law and lawyer specializing in Bioethics, Biolaw, and Medical Law; and Nathália Pompeu, PhD in Business Law and corporate executive director at Hapvida Notredame Intermédica, bringing the insider perspective of the health insurance market.
The classes are online and live, held every two weeks. The program includes five in-person meetings in São Paulo, including access to the Supreme Federal Court (STF) and the Superior Court of Justice (STJ), and direct contact with professors and professionals who are active in the field.
Manassés Lopes da Silva is a business lawyer and university professor. He holds a Master's degree in Law from IDP/SP, a specialization in Civil Procedural Law from IDP, and an LLM in Processes and Appeals in Superior Courts. Email: contato@manasseslopes.com
