the hospital designated for her care was not suitable for her long-term admission; therefore, the Isapre would
have to move the patient to another region, which would end up generating more costs. She also said that RHD
was more favorable for the health of the patient.48
44.
The Isapre filed an application for reconsideration 49 and the petitioners answered the
50
application. The judge-arbitrator confirmed her judgment on June 12, 2012,51 noting that, in her opinion "the
restriction established by the CAEC's conditions in order to exclude in-home care from said benefit and only
grant it under the health plan’s coverage, makes it untenable for the insured to maintain that alternative
treatment over time, forcing them to resort to traditional hospitalization, which is more onerous for both
parties." 52 The Isapre filed an appeal and on August 27, 53 2012, the judge-arbitrator, the Superintendent of
Health, decided in favor of Martina. The judge-arbitrator considered that he could "base his decision on
principles of prudence and fairness to give each party what they deserve and could deviate from the standards
in force in order to reach a just solution”; he also found “that there is no debate as to the chronic nature or
otherwise of the pathology that affects [Martina], a question that the Tribunal expressly recognizes and,
therefore, although in principle, under the rules that govern in-home care within the framework of the CAEC,
that nature would exclude said pathology, the very particular circumstances of this case have been taken into
consideration” in order to come to the decision that the Isapre Masvida S.A. must continue granting said
benefit.54
5.
The situation after the reinstatement of the in-home care regime
45.
The petitioners have sent several communications to the Commission stating that after the
reinstatement of the RHD, the new health care provider has not maintained the same quality of care that
Martina received previously55 and that the family has to communicate with the Isapre or the Superintendency56
in relation to changes or terminations of components of the RHD that they fear could lead to a new attempt to
lift said regime. Thus, they informed the IACHR that on April 5, 2016, they advised the Superintendency of their
concern regarding an intimidating communication notifying them of an appointment with a physiotherapist,57
stating that "the Isapre is entitled periodically to evaluate compliance with the conditions that warrant in-home
care."58
IV.
LEGAL ANALYSIS
48.
Annex X, Judgment of Judge-Arbitrator Escobar, Health Care Funds and Insurance Authority, April 19, 2012 . Appended to the
petitioners’ brief of March 6, 2017.
49.
Annex X. Application for reconsideration of the respondent of April 19, 2012. Appended to the petitioners’ brief of March 6,
2017.
50 .
Annex X. Claimant’s answer to the application for reconsideration (undated). Appended to the petitioners’ brief of March 6,
2017.
51.
Annex X, Judgment of Judge-Arbitrator Escobar, Health Care Funds and Insurance Authority, June 12, 2012 . Appended to the
petitioners’ brief of March 6, 2017.
52.
Annex X, Confirmation of judgment of Judge-Arbitrator Escobar, Health Care Funds and Insurance Authority, June 12, 2012 .
Appended to the petitioners’ brief of March 6, 2017.
53.
Annex X. Appeal of the respondent. Appended to the petitioners’ brief of March 6, 2017.
54 .
Annex X, Appeal Judgment of Judge-Arbitrator Romero Stroy of August 23, 2012. Appended to the petitioners’ brief of March 6,
2017.
55
Annex X. Letter to the Isapre of May 4, 2017. Appended to the petitioners’ brief of December 28, 2017.
56.
Annex X. Letters to the Superintendency of June 8 and August 3, 2017. Appended to the petitioners’ brief of December 28,
2017.
57.
Annex X. Letter to the Superintendency of April 5, 2017. Appended to the petitioners’ brief of [April] 6, 2017.
58.
Annex X. Letter to the Isapre of March 28, 2017. Appended to the petitioners’ brief of [April] 6, 2017.
9