A lawsuit was filed in the 3rd Civil Court of Osasco/SP, in which the consumer requested judicial protection that would obligate the operator of the health plan of which she is the beneficiary to pay for medical treatment she had performed at a non-accredited medical institution. This is process number 1027086-14.2019.8.26.0405.
The operator, whose interests were defended by Vigna Advogados Associados, argued in a defense that, by law and contract, there was no legal support for the plaintiff’s requests, since there was a chain of approved providers able to perform within the approved network the care that was necessary for the patient, and since they were not In an emergency situation (read: Danger of immediate death or irreparable injury – Section 35-c, 1, Law 9.656/98), there were no grounds for doing the service at a non-accredited facility.
The defense also relied on the need to maintain the economic and financial balance of the existing contract between the two parties and the solidarity character that permeates the contracts of the health fund, explaining to the court that coverage of treatments outside the approved network represents an expense above. What is planned for the operators, that this practice increases the percentage of loss in the contract, and since it pays for this transaction in favor of one beneficiary, the operator ends up increasing the monthly fee for all plan beneficiaries to recover from the losses.
It has also been clarified that it is not even possible to pay the plaintiff’s expenses within the limits of what will be spent within the approved network, because payments to unaccredited third parties require a series of administrative activities that, in the end, represent a significant cost – greater than simple medical care, due to the need to perform several checks.
The judge responsible for ruling the case fully accepted the defense presented, and declared the request completely unfounded.
Against the decision, the plaintiff filed an appeal which was eventually partially accepted by TJ/SP, in the ruling of the Des Rapporteur. Coelho Mendes, declaring the procedure partially valid and convicting the defendant operator to compensate the plaintiff for the amount referring to the medical procedure if it was performed within the approved network. The reasons for the resolution of the case were not presented.
The operator understood that the judgment had no sound legal basis and therefore, being against the law and jurisprudence, made a private appeal, which was again rejected by the state court.
Ascertaining the validity of her right and the formal and material regularity of her appeal, the defendant filed a preliminary appeal in the special appeal with a view to explaining her reasons to the Supreme Court, and succeeded in obtaining a judgment of complete inadmissibility of the action.
The defendant’s AREsp ruling was reported by Minister Maria Isabel Gallotti, who admitted in her vote that the decision by the state court differed from the understanding signed by STJ, meaning that the operators are only required to pay for treatment. Implemented outside the approved network in very exceptional cases, including the absence of an authorized professional within the geographical area covered by the contract and in emergency or urgent cases.
The Minister’s decision was timely, to honor the jurisprudence that had been formed in the Supreme Court–which is not routinely respected by some state court bodies–and to give greater legal certainty to the relationships established between operators and beneficiaries, which though regulated by different rules to Significantly, they are always subject to lawsuits due to uncertainty regarding limits and contractual obligations.
The ruling in question does not have a binding effect on operations involving third parties and the interested party can appeal, but it represents another important step towards greater stability of the complementary health sector, which will benefit society by providing more people access to quality health services.
* Vitor Camargo Oliveira Santos, Attorney at Vigna Advogados Associados, Postgraduate Graduate in Medical and Hospital Law at Escola Paulista de Direito – EPD.
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