Background
A patient sought coverage from Unimed Campinas for omalizumab (Xolair) to treat chronic refractory urticaria. The prescribing physician reported that the condition involved life-threatening risks, that other treatments had failed, and that the drug should be administered in a hospital setting with resources to treat anaphylaxis and with two hours of post-administration monitoring.
The São Paulo Court of Justice upheld an order requiring coverage. It found that omalizumab had been included in the Brazilian National Supplementary Health Agency’s mandatory-coverage list since 2021 for chronic spontaneous urticaria and rejected Unimed’s arguments that the treatment fell outside the contract and constituted excluded home-use medication. Unimed filed a special appeal, contending that Articles 10(VI) and 10(§4) of Law No. 9,656/1998 permitted denial because the drug was for home use and allegedly was not included in the governing regulatory coverage list.
The STJ presidency initially declined to hear Unimed’s interlocutory appeal under STJ Súmula 182. On internal appeal, the Fourth Panel reconsidered that procedural ruling and examined the challenge to the denial of the special appeal.
The Court’s Holding
The Fourth Panel unanimously granted Unimed’s internal appeal only to the extent necessary to reconsider the presidency’s ruling and hear the interlocutory appeal. It then denied relief on the special appeal, leaving the coverage order intact.
The STJ held that omalizumab appears on the ANS list for treatment of chronic urticaria, among other conditions, and therefore a health insurer may not deny coverage for that treatment. Because the state court’s decision conformed to established STJ precedent, Súmula 83 barred the special appeal. The STJ’s dispositive analysis rested on the drug’s inclusion in the ANS list and controlling precedent; its discussion of the hospital-administration and home-use issues recounted the state court’s reasoning.
The court also increased prevailing-party attorney fees from 12% to 13% of the updated amount in controversy under Article 85(§11) of the Code of Civil Procedure.
Key Takeaways
- Omalizumab (Xolair) is included in the ANS mandatory-coverage list for chronic urticaria, so a health plan may not refuse coverage on the asserted ground that the drug is outside that list.
- STJ Súmula 83 prevents a special appeal from succeeding when the challenged decision accords with the STJ’s settled case law.
- Granting the internal appeal did not give Unimed substantive relief: it secured reconsideration and merits review, after which the court denied the special appeal.
Why It Matters
The decision reinforces the STJ’s consistent position that health insurers must cover omalizumab for chronic urticaria because the treatment is included in the ANS list. It also illustrates an important procedural distinction: a party may prevail in obtaining review of an appeal yet still lose on the underlying merits.