COVID-19 pandemic and the judicialization of health care: an explanatory case study *

Objective to identify the reasons that led to the judicialization of health care in the context of the COVID-19 pandemic; describe the outcomes of lawsuits concerning health care involving the COVID-19; and analyze the cases of health care judicialization intended to ensure the population’s right to health. Method qualitative, explanatory case study. Data were collected from the websites of the Federal Prosecution Service, Regional Labor Court (1st Region), and the Court of Justice of Rio de Janeiro. The inclusion criterion was public civil actions that concerned health care and situations involving the COVID-19 pandemic. Two categories emerged from data analysis. Results four cases were identified. Conclusion the judicialization of health care consists of obtaining assets and rights in the courts. These assets and rights are essential to ensure the health of citizens but have been denied in various instances, often due to the omission of the executive and legislative powers. Analyzing the judicialization of health care amidst the pandemic brings focus and highlights the importance of giving voice and visibility to the enormous contingent of the Brazilian society unassisted by public authorities.


Introduction
Health is generally conceived as the greatest asset of human beings. Such understanding is based on the fact that, in the absence of health, one cannot remain active and functioning in society.
The concept of health involves objective and subjective aspects. In this sense, it is characterized as a balance between human beings and the environment, enabling people to play their social, familial and occupational roles, a situation in which physical, biological and psychosocial aggressors are either contained or eliminated (1) .
From the perspective of its objectivity, health is the expression of quality of life, resulting from one's eating habits, housing, education, income, environment, work, transportation, employment, leisure, freedom, access to and possession of land, and access to health services.
Thus, the results of the social organization of production may generate inequalities in terms of living standards, leading to illness, sequelae, and even death (2) .
The health of individuals is an essential condition for society to keep growing, developing, and progressing. In this sense, healthy life requires more than people complying with their responsibilities at an individual level; it also requires protection from the part of public authorities.
In Brazil, the Federal Constitution (FC) from 1988 incorporated the recommendations of the Brazilian health movement that resulted from extensive discussions with the organized civil society. The Section dealing with health contains the entrenched clause, Article 196 in which "health is the right of all and a duty of the State" (3) , and establishes how the health system is organized and financed.

Based on constitutional principles, the Brazilian
Unified Health System (SUS) is responsible for promoting health, preventing and curing diseases, and promoting the rehabilitation of people, while the private sector can provide complementary health services. The private sector, however, assumed new contours and arrangements that resulted on it providing Supplementary health services (4) . The SUS, regulated by Laws No. 8080/1990 andNo. 8.142/1990, is one of the largest and most complex public health systems in the world, the ideological principles of which are universality, integrality, and equity for the entire population. It involves the three levels of the Federation: Union, States and Cities. The network composing the SUS encompasses primary, secondary, tertiary and quaternary care; urgent and emergency services, hospital care, and epidemiological, health and environmental surveillance actions, in addition to pharmaceutical care (5) . Supplementary healthcare is an alternative for people to obtain health services, involving the operation of private care plans and insurances (4) . This sector is regulated by the government through its regulating agency -ANS and operators comprise specialized health insurers, group medicines, cooperatives, philanthropic and self-managed institutions, which in turn, demand financial payment, that is, affiliates have to pay for the services (4) .  (6) . Such a context tends to worsen with the Constitutional Amendment Proposal No. 55 from 2016, which prevents investments in health and education for 20 years (7) .
At the same time, social inequality, economic recession, new forms in which work is organized and explored in the Brazilian society have increasingly put pressure on SUS. There are two ends that do not meet: on the one hand, there is a system that lacks financing and is vilified by inconsequential governments, and on the other hand, there are growing misery and illnesses (8) .
Therefore, negative unfolding impacts the quality of care delivery, causing suffering to people and worsening their health conditions, leading to dissatisfaction and causing psychophysical illnesses among workers, as well as absenteeism and presenteeism (9) . staff, pressure, and increased demand for productivity and the need to meet increasingly higher goals (4) .
Such a context compromises the quality of services and results in ill workers, who experience psychological distress due to hierarchical relationships permeated by moral harassment that cause fear, while not fully meeting the health needs of patients (10) .
Therefore, the public and private sectors present contexts that negatively impact and prevent the healthy progress of actions developed within SUS and the supply of services to meet the health demands of the Brazilian population. Therefore, these services are subject to legal actions, so that both patients and workers have their rights fulfilled, according to what is provided by the Constitution and complementary laws (11) .
The population and workers alike will grow dissatisfied with the Brazilian health system and its working conditions. From this perspective, the judicialization of health care is likely to magnify during the epidemic.
Such reflections and concerns encouraged this

Method
This is a qualitative, exploratory case study. Case studies are intended to explain, explore or describe current phenomena inserted in their own context. Thus, it is appropriate to understand how and the reasons that led to certain decisions (14)(15) .
Secondary data were collected, specifically from the sites of the Federal Prosecution Service, Regional Labor Court -1 st Region (Rio de Janeiro) and the Court of Justice of the state of Rio de Janeiro, which are public and, therefore, dispense institutional review board approval. Additionally, information was collected from documents related to laws and legal decisions.
The option to investigate the cases that took place in the state of Rio de Janeiro was based on the following: i) Rio de Janeiro is one of the states most severely affected by the epidemic; ii) it was the first to adopt social isolation measures; and iii) the phenomenon was identified by researchers in the region.
Data were collected in April 2020 using a form addressing the following information: places where lawsuits were filed; dates on which lawsuits were filed; case numbers; reasons justifying the lawsuits; parties involved in the court lawsuits; and respective outcomes.
The cases were chosen based on the following criteria: being public civil actions related to health and situations related to the COVID-19 pandemic, which contained decisions, albeit of a precarious nature, considering it was a preliminary (not definitive) pronouncement. Four cases met this criterion.
Data analysis was based on the following procedures: synthetic description of selected cases, focusing on content that enabled understanding the problem; comparison of content of legal decisions according to law and jurisprudence; and the establishment of two analytical categories that permitted discussing the cases in the light of the literature. Case 1 -Process No. 0084141-46.2020.8.19 The union argued that these workers are more likely to progress to a more severe condition due to the infection, considering they are in direct and continuous contact with infected patients and exposed to risks.

Results
It also claimed there was a lack of PPE, and for this reason, many health workers had been contaminated with COVID-19, exponentially raising the risk of illness. shows that all people are endowed with fundamental rights, especially the right to Health, which should be appreciated in all analyzes (16) .  (16) .
Currently, there is a pandemic marked in the Brazilian context by great political instability, social disparities, unequal access to the health system (17) , and inappropriate working conditions (low salaries, precarious PPE, and insufficient material) faced by health workers, especially nurses (13,18) , which result in inadequate work organization.
This problem is mainly due to the sudden increase in the number of patients in intensive care units, which are invariably overcrowded, with an insufficient number www.eerp.usp.br/rlae 6 Rev. Latino-Am. Enfermagem 2020;28:e3354.
of care devices, overloading the health system. This situation affects health workers who are dealing with exhausting working hours, negatively influencing their physiological and psychological needs, in addition to the safety at work (9,13,18) .
The protection of workers has been identified as a primary and strategic measure to face the pandemic.

An efficient strategic plan was established in the United
Kingdom to ensure workers have PPE (19) . In Russia, on the other hand, the lack of PPE is marked by a growing number of health workers becoming infected (20) .
In Brazil, insufficient PPE is a problem to be combated due to the growing number of deaths among health workers, especially nursing workers (13,18) . From this perspective, this scarcity results in a more significant number of infected cases and deaths, compromising the human dignity of patients and workers, who face precarious working conditions and a higher risk of death.
This situation is aggravated even more with the political and economic stability Brazil is experiencing (17) .
To apply the principle of human dignity means to ratify the democratic rule of law; valuing this principle implies respecting human beings, whose lives are their greatest asset. In this context, lawsuits have been filed to ensure rights, especially the right to health.
Therefore, it is important to highlight the need for discussing the judicialization of healthcare, addressing two contents: right and health, having as framework social and economic aspects, all integral and necessary to the establishment of Public Health Policy (11) .  (26) .
In this line of reasoning, thinking about the elderly is urgent, considering that the virus is more lethal among those of advanced age. Hence, preserving life and thinking about those living in collective spaces is extremely important and urgent in order to ensure the health and protection of those living in long-stay institutions.
In Brazil, an LSIE is defined by ANVISA, in Collegiate Board Resolution 283, as governmental or non-governmental institutions, the purpose of which is to shelter people aged 60 or over, granting them dignity and citizenship rights, in order to provide social and health services (27) .
Therefore, ensuring safe conditions to elderly individuals and workers in these spaces is essential. The provision of PPE to workers and inputs to protect the residents of LSIEs is a condition necessary to promote the constitutional right of human dignity.
We need to have focus and discipline to face the adversities accruing from SARS-CoV-2, which in Brazil are inserted in a context of social inequality, decreased investment in science (such as drastic cuts in research funding), in social security and in public services in general (17) .
There is an international appeal for society to invest in science, incorporating the knowledge produced in research in the public policies of countries and in international treaties (28) .
This study's contributions include the analysis of concrete cases involving the judicialization of health care in the face of the COVID-19 pandemic, bringing to light measures that need to be considered and adopted to ensure the right to health. Additionally, this study presents some public civil actions filed thus far, as well as situations that require attention considering the crisis of the health sector, which demand that changes be implemented in the public and private health systems.
This study's limitations include the fact that data were collected only in Rio de Janeiro and also that at least three or more triangulation techniques were not adopted. The reason is due to the context of the pandemic itself, which hindered access to the context of care provided to patients with COVID-19 to collect data.

Conclusion
The analysis of the cases led to the conclusion that the objective of the judicialization of health care was to ensure that the public authorities would comply with the fundamental rights of citizens, as well as with technical and scientific recommendations and measures intended to protect the population during the pandemic.
In this sense, the synthesis of the results is linked to the need to protect the fundamental rights established in entrenched clauses of the Federal Constitution, guided by the principle of human dignity, a guiding command of the entire legal system.
Analyzing the judicialization of health care at this time of the pandemic brings to light the fact that there is a huge contingent of the Brazilian society that is not properly assisted by public authorities, highlighting the fragility of the system, the potential for the pandemic to worsen, as well as a potential increase in the number of deaths due to COVID-19.
The judicialization of health care reveals a lack of compliance with constitutional prerogatives concerning right to health and human dignity as well the state's inability to fulfill the right of citizens who become invisible in a society marked by inequality and enormous wealth concentration.
From this perspective, the government, at its three levels, should commit to the enforcement of constitutional rules, making effective and materializing fundamental rights in order to enable health workers and the population to have a healthy life. These measures ensure not only the compliance of rights, but also evidence the ethical duty of government officials and the need of a state that is capable to promote equity.