SUS denied medication or surgery: what to do
Did Brazil's SUS deny a high-cost drug, surgery or treatment? See what the Supreme Court has required since 2024, the documents you need and when to seek an injunction.
Sidnei Pedro Dias
9/28/20264 min read
Brazil's Constitution states that health is everyone's right and the State's duty (art. 196). When the public health system (SUS) denies a high-cost medication, surgery or treatment, you can ask the courts to order the government to provide it. Since 2024, however, the Federal Supreme Court (STF) has set stricter rules for these requests, and knowing them makes a difference to the outcome.
First step: apply and keep the denial
Before going to court, you must apply to the SUS, through the high-cost pharmacy, the Health Department or the unit treating the patient. Keep the protocol number and ask for a written answer. For medications, a denial through administrative channels is one of the requirements set by the STF.
Medication already on the SUS list
If the drug is already on the SUS lists and the patient fits the clinical protocol for the disease, the situation is simpler: supplying it is a government obligation. Stock shortages or unjustified delays can be taken to court.
Medication registered with Anvisa but not on the SUS list
This is the most common situation for high-cost drugs. Under Binding Precedent 61 and STF Theme 6, a judge can only grant the request if the patient proves, all at once:
- that the SUS denied the drug;
- that Conitec, the body that decides what enters the SUS, acted unlawfully or is delaying its review of the drug;
- that there is no suitable substitute on the SUS list;
- that there is high-level scientific evidence of the drug's effectiveness;
- that the drug is essential, supported by a well-grounded medical report;
- that the patient cannot afford the treatment.
In practice, the medical report is the key document. It must explain the disease, the treatments already tried, why the SUS options do not work and why that drug is necessary.
Medication without Anvisa registration
Under STF Theme 500, the general rule is that courts cannot order the supply of a drug without Anvisa registration, nor of an experimental drug. The exception is when Anvisa takes longer than the legal deadline to review the registration and, at the same time, the drug is registered with renowned foreign agencies and there is no registered substitute in Brazil. In those cases, the lawsuit is filed against the Federal Government.
Who to sue and in which court
STF Theme 1234 and Binding Precedent 60 define who is responsible, based on the annual cost of treatment, calculated at the maximum sale price to the government:
- 210 minimum wages per year or more: Federal Courts, against the Federal Government;
- between 7 and 210 minimum wages per year: State Courts, against the State;
- below 7 minimum wages per year: State Courts, against the State.
With the 2026 minimum wage (R$ 1,621.00), 210 minimum wages equal R$ 340,410.00 per year. This calculation decides where the case begins, and getting it wrong can delay the process.
Surgeries, tests and treatments
The 2024 binding precedents deal with medications. For surgeries, tests and other procedures, the legal basis remains the constitutional right to health. The typical case is a SUS waiting list with delays that put life at risk or worsen the disease. A medical report stating the urgency and the risk of waiting is the most important document.
Documents to gather
- detailed medical report, with the disease (ICD code), history, previous treatments and urgency;
- prescription or medical order for the drug, surgery or test;
- protocol of the SUS application and the denial, if any;
- test results confirming the diagnosis;
- proof of income and expenses, to show you cannot pay;
- personal ID, proof of address and SUS card.
What if it is urgent?
When waiting puts life or health at risk, you can request an injunction, a quick decision at the start of the case, before the final judgment. The judge considers whether the right is likely and whether delay is dangerous. That is why the urgency must be clearly described in the medical report.
If the patient has private health insurance, a denial by the health plan follows different rules, under the health plans law and the contract, and the path is different.
SPD Advocacia handles health lawsuits against the government throughout Brazil, with digital service. Learn more in health law or message us on WhatsApp (62) 98184-3257.
Updated September 2026. Informational content, in line with Brazilian Bar (OAB) rules (Provimento 205/2021). Each case needs its own analysis, and we do not promise results.