Martina was transferred back to Arica where she was under the in-home care regime (RHD). According to the
medical reports in the record, the RHD has been essential to maintain Martina’s quality of life. In this regard, a
medical report notes that “her good nutritional state and overall condition are striking and difficult to achieve
in such patients, which demonstrates that the family and health personnel are administering the therapies
effectively and providing good care."22 Another report said that "modern approaches to medicine are clearly
oriented toward this type of patient being referred for in-home care. This is a fact and the experience at the
public as well as the private level is more than abundant; therefore, sending Martina to a hospital goes against
all the approaches recommended by specialists."23 For the purposes of Martina’s care, RHD entails the following
equipment and services: "mechanical ventilator, special bed, anti-decubitus mattress, saturation monitors,
secretion aspiration motor; Martina also has a tracheotomy and gastrostomy. The local care providers consist
of a kinesiologist, two nurses, three paramedical auxiliaries and a doctor."24
30.
The petitioners said that on October 13, 2010, the Isapre sent a letter to the family informing
them that the RHD would terminate on October 28, 2010, because the "GES-CAEC committee, the superior
authority of the Isapre (...), has determined, based on the expert opinion of Dr. Rodrigo Var[g]as Saavedra, who
reports that the condition of [Martina] is progressive and unrecoverable,” that condition of the girl is "chronic”
and therefore excluded from RHD in accordance with Article I, point 10, of Circular No. 7. The letter also stated
that "in the event that Martina, due to some complication, should require hospitalization at a health care facility,
her designated provider is Arica Hospital, her modality of care institutional." 25 This determination that her
condition was chronic was a conclusion that the Isapre reached based on an expert medical opinion, as
follows:26
5. (...) in keeping with the expert opinion of the neurosurgeon Dr. Rodrigo Vargas Saavedra,
dated September 30, 2010, CAEC under in-home care would only be provided to the child
Marina Vera until October 28, 2010, since the services provided derive from a chronic
pathology (...) Indeed, the above professional said in his report: “by the clinical history and my
review of the tests performed for her diagnosis, her evolution, and her current neurological
state, I must conclude that the harm to Martina is severe and unrecoverable, making the
prognosis ominous (...)’; therefore, it was possible to conclude that the disease (...) is chronic.
31.
With regard to the above reasoning, the petitioners included in the record one of their briefs
in the arbitration proceeding, in which they reject the interpretation of the Isapre that the expert opinion of Dr.
Vargas was aimed at determining the chronicity, or otherwise, of the disease, and assert, rather, that it was a
report on the condition of Martina in which the word chronic was not used at any time.27 In fact, as detailed
below, in his statement in the arbitration proceeding, the aforementioned doctor denies the chronic nature of
Leigh's syndrome.28
32.
The State indicated that "there is no single, special procedure by which insurers can declare
that a certain disease is chronic, but given that financing for catastrophic illnesses is determined, in part, by the
need for Isapres to control the costs of treatment of such diseases, they are the ones that evaluate each case
and decide, based on the medical history in each instance, if it is appropriate that a certain disease be declared
chronic." It also said that "such a declaration [that a disease is chronic] must be medically based, so (...) that it
can be challenged before the Superintendency."29
22.
Annex X, Medical report of Dr. Rodrigo Vargas Saavedra of September 30, 2010. Appended to the initial petition of November
4, 2011.
23.
Annex X, Medical report of Dr. Oscar Darrigrande of July 15, 2011. Appended to the initial petition of November 4, 2011.
24.
Annex X, Medical report of Dr. Oscar Darrigrande of October 25, 2011. Appended to the initial petition of November 4, 2011;
and Annex X. Certificate of the health care provider Servicios Clínicos S.A. of October 25, 2011. Appended to the initial petition of
November 4, 2011.
25.
Annex X. Letter from the Isapre to Mr. Vera of October 13, 2015. Appended to the petitioners’ brief of March 6, 2017.
26.
Annex X. Answer of the Isapre to the arbitral claim, February 29, 2012. Appended to the petitioners’ brief of March 6, 2017.
27 .
Annex X, Petitioners’ brief in the arbitral claim, March 5, 2012. Appended to the petitioners’ brief of March 6, 2017.
28.
Annex X, Witness statement of Dr. Vargas in the arbitral claim, March 7, 2012. Appended to the petitioners’ brief of March 6,
2017.
29.
State's brief of January 9, 2018.
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