Saúde Suplementar no Brasil e a negativa de tratamentos pelas operadoras de plano de saúde: inércia do judiciário ou conduta ilícita não observada?

Abstract

Although the 1988 Federal Constitution enshrines the right to health as a fundamental social guarantee, governmental efforts, embodied in the Unified Health System, to fulfill this constitutional mandate have proven ineffective. Consequently, the Supplementary Health sector has acquired significant prominence in the national landscape. However, while it may serve as an alternative to the shortcomings of public healthcare, individuals, acting as beneficiaries of Health Plan Operators, often find themselves unassisted at critical moments concerning their own health or that of their dependents. This typically occurs when access to treatments, procedures, or medications is denied, compelling the beneficiary to seek judicial intervention in order to obtain services that are already contractually guaranteed. In light of this issue, the primary objective of this study is to investigate, from a research perspective, the reasons behind the high volume of legal actions in the healthcare sector involving the denial of service provision, in accordance with current legislation and jurisprudence. This will be demonstrated through an analysis of legal provisions governing contracts and specific health regulations, with the aim of identifying normative gaps that enable the antagonistic stance of health plan operators. The unlawfulness of such conduct will be established, the main areas where this phenomenon occurs will be identified, and the study will conclude by presenting the countermeasures adopted by health regulatory agencies and judicial bodies to combat this issue