The efficacy of the fundamental right to health in private legal relations established between health insurance companies and their customers
| Autor | Rodolpho Barreto Sampaio Júnior - Thiago Penido Martins |
| Ocupação do Autor | Earned his PH.D. in Civil Law from the Federal University of Minas Gerais - Earned his LL.M. in Corporate Law from Milton Campos Law School |
| Páginas | 692-723 |
692 • XXVI World Congress of Philosophy of Law and Social Philosophy
The efcacy of the fundamental right
to health in private legal relations
established between health insurance
companies and their customers
Rodolpho Barreto Sampaio Júnior1
Thiago Penido Martins2
Abstract: This work aims to analyze the ecacy of the fundamental right to
health in the realm of private legal relations established between health insur-
ance companies and their customers within the context of the Brazilian legal
system, analyzing its eects both on economic relations and in the market.
Moreover, this work also aims to propose solutions capable of conciliating the
eectiveness of the fundamental right to health, enshrined in Brazil’s Constitu-
tion, with the protection to the important rights of private autonomy, contrac-
tual freedom and the free enterprise conferred to economic agents.
Keywords: Fundamental rights, Autonomy, Contractual Freedom.
1. Introduction
Given the scope and the many themes that can be developed
with regards to the issue of the eectiveness of fundamental rights in the
legal relationship between insurance providers and health care recipi-
ents this article, using methodological issues, will be limited to - examin-
ing specic situations in which the theme acquires important contours
within the Brazilian legal system.
1
Rodolpho Barreto Sampaio Júnior earned his PH.D. in Civil Law from the Federal Uni-
versity of Minas Gerais. He teaches at Pontifícia Universidade Católica de Minas Gerais.
Contact: rodolpho@pucminas.br.
2
iago Penido Martins earned his LL.M. in Corporate Law from Milton Campos Law
School. He teaches at Novos Horizontes College. Contact: thiagopenido@yahoo.com.br
Special Workshop: Autonomy and paternalism • 693
The big question to be answered is to dene the extent to which
operators of private health care plans are linked to the fundamental
right to health. Are the operators of private health care plans required
to provide mandatory medical and hospital coverage or services that
were not objective of the contract with the beneciary in the name of the
direct eectiveness of the fundamental right to health?
The resolution of this important issue pervades by delimiting the
extent of the fundamental right to health in private legal relationships
between providers of health care plans and their beneciaries in order to
nd a solution capable of reconciling the protection of this fundamental
right with the protection of private autonomy, freedom of contract and
legal certainty within the legal relations between individuals.
2. The right to health
The right to health is inserted among the fundamental rights of
a social nature provided by the Brazilian Constitution. The Constitu-
tion of the 1988 Brazilian Republic included the fundamental right to
health in the list of social rights of Article 6, to ensure it guarantees the
fundamental rights to education, work, housing rights, leisure, security,
social security, protection of motherhood and childhood, assistance to
the destitute, observing the other constitutional provisions.
Disciplinary social order in Article 196 in the Constitution of the
Republic, is explicit and unambiguous which sought to be the funda-
mental right to health and duty of the State, guaranteed through social
and economic policies aimed at universal and equal access to actions
and services for its promotion, protection and recovery, ensuring, how-
ever, the possibility that the private sector also provides health care ser-
vices under the regulatory legislation.
In the Brazilian legal system, the right to health was regulated
by Law 8080 of 1990, which provides the conditions for the promotion,
protection and recovery of health, organization and functioning of rel-
evant services. According to legal provisions contained in Article 2 of
that legislative instrument, “health is a fundamental human right, and the
State shall provide the conditions required for its full realization” through “the
formulation and implementation of economic and social policies.”
According to the second subparagraph of Article 2 of that stat-
ute, the “duty of the state does not exclude people, family, business and soci-
ety” consecrating therefore the principle of social solidarity, which also
694 • XXVI World Congress of Philosophy of Law and Social Philosophy
constitutes one of the objectives of the Federative Republic of Brazil. The
role of private enterprise to promote health, in turn, is governed primar-
ily by Law 9656 of 1998 which regulates the activities of the operators of
private insurance plans and health care.
2.1 Effectiveness of health rights in legal relationships between
providers of health care plans and their beneciaries.
Currently, the main legal disputes involving the operators of pri-
vate health care plans and their beneciaries deal with the coverage of
medical procedures. The lawsuits, mostly relate to cases under which
recepients of health insurance insist that the operators of private health
care plans are required to cover and pay for medical procedures whose
coverage was not previously contracted.
Already there are reports of an imposition - including in the judi-
cial sphere – of material benets to private entities, in favor of oth-
er individuals. This occurs with some frequency (and, of course,
in certain circumstances and under certain assumptions) in cases
involving health plan sponsors, that even when claiming there is
no contractual coverage, they are still required, based on the fun-
damental rights of consumer protection, health services constitu-
tionally assured and to bear the medical and hospital expenses for
its insured. (SARLET, 2006, p. 593)
Faced with these situations, the interpreter applicator is respon-
sible to carry out the analysis of the contractually established restric-
tions, especially when faced with the fundamental right to health. They
must also consider all consitutional normative framework to regulate
the contractual relations between the operators of private health care
plans and their beneciaries, to nd a constitutionally adequate solution
to the problem. This is embraced by the denition of the extent of the
eectiveness of the fundamental right to health under this legal relation-
ship between individuals.
A careful and detailed study of cases involving litigations related
to coverage of medical procedures by operators of private health care
plans, we infer that there has been rare cases where the assigned solu-
tion entered the discussion of this important issue of the eectiveness of
fundamental law to health within the legal relations between individu-
als, most of the time becoming of restricted analysis of abusive contract
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