Responsabilidade civil do estado em serviços de saúde terceirizados: um estudo de caso sobre o mutirão de catarata em parelhas/rn à luz do art. 37, § 6º, da CF e do tema 940 do STF

Abstract

The provision of public health services through outsourced campaigns (mutirões), although aiming to expand population access and reduce waiting lists, imposes profound challenges on public management regarding the guarantee of health safety and the limits of state liability. In this sense, the study analyzes the application of State civil liability in the tragic case of the cataract surgery campaign held in Parelhas/RN, in light of Article 37, § 6, of the Federal Constitution and Theme 940 of the Supreme Federal Court (STF). The bibliographic and documentary research is based on legal doctrine, case law, and official technical reports from the health surveillance agency (SUVISA/RN), seeking to understand how the legal system reconciles the Administrative Risk Theory with the activities of outsourced companies in exceptional regimes. The results demonstrate that outsourcing does not exempt the municipal entity from its strict liability, evidencing that the failure in the duty to supervise (culpa in vigilando) and structural inadequacy attract the State's duty to indemnify, in accordance with the Double Guarantee Theory established by the STF, which bars the direct liability of the outsourced agent in the main lawsuit. Therefore, it is concluded that the Municipality has the unavoidable duty to repair the damages caused to patients and the obligation to exercise the action of recourse against the service provider, upon proof of technical fault, to ensure the protection of human dignity and reimbursement to the public treasury.