However, when in a case determined not to be provided – for reason s of
economic convenience and commercial interenst – that the persons and private
institutions take care of the health of the population, it does not fit but to
conclude that it is the concern of the State, in the position of guarantor, to offer
the necessary services in order to face the sickness, (esta Sala, arg. in re “Alcalá,
Cristina Beatríz c/M° de Salud y Acción Social”, 9 de marzo de 1998), in an
effective and suitable manner.
XI . According to the attached documentation to these proceedings and the
assumed positions by the parties, it is not debatable that:
a) the Argentian hemorragica fever is an epidemic and endimic (confr.:fs. 3,5 del
folleto agregado a fs. 44;45, entre otras);
b) the most complete protection against the Argentinian hemorragica fever is the
Candid vaccine. (confr.: fs. 351, primer párrafo), cuya efectividad está en el
orden del 95,5% (fs. 361).
c) the World Health Organization endorsed its effectiveness and the Argentinain
Minsiter of Health and Social Action authorized its application in 1991, by
resolution 100 (fs. 351, 6° párrafo);
d) Until the present time, the Candid vaccine has been produced totally by the
Salk Institute, by means of a contract with the United States Defense
Department. Approsimately 320,000 doses of the vaccine have been aquired,
making an available stock of 80,000 doses (fs. 326) and this amount is not
sufficient to immun ize the 3.5 million habitants of the endemic zone. (fs. 351,
7° y fs. 23, 3° párrafo).
e) Considering that this disease is exclusive to our country, that it is not provided
to prodcue the Candid vaccine in the foreigner, and that due tot hen umber of
person to vaccinate, the production of this vaccine is not attractive from the
commercial point of view, the availability of the vaccine for the population of
the endemic area is subject to the advance of the Candid 1 production in the
labatories of the National Institute of Viral Diseases "Dr. Julio Maiztegui."
(confr. fs. 23, 3° párrafo).
XII .What is clearly apparent from the records of the case that the "Estado
Naticional" through the ministry defendant, has assumed the obligation to
produce the vaccine for teh purpose to combat the FHA.