A lawsuit has been filed in the 3rd Civil Court of Osasco/SP, in which the consumer requested legal protection that would oblige the operator of the health plan under which she is a beneficiary to pay for the medical treatment she received. in an unlicensed medical facility. This is process number 1027086-14.2019.8.26.0405.
The operator, whose interests were defended by Vigna Advogados Associados, argued in defense that, under the law and the contract, there was no legal basis for the plaintiff’s claims, given that there is within the accredited network a series of accredited providers capable of carrying out the care that was necessary for the patient and that, since she was not in an emergency situation (read: immediate risk of death or irreparable injury – art 35-C, I, Law 9.656/98), there was no reason to perform the service in an unlicensed establishment.
The defense also relied on the need to maintain the economic and financial balance of the existing contract between the parties and the solidarity character that permeates health plan contracts, specifying to the court that the payment of treatment outside the approved network represents a higher expense than what was expected for the operators, so that this practice increases the loss ratio of the contract and, as it remunerates such treatment in favor of a single beneficiary, the operator ends up being forced to increase the monthly fee of all beneficiaries of the plan to recover losses.
It has also been clarified that it is not even possible to pay the applicant’s expenses within the limit of what would be spent within the accredited network, since payments made to non-accredited third parties require a series of administrative activities. which, in the end, end up representing a considerable cost, higher than simple medical care, given the need to carry out several audits.
The judge in charge of the judgment of the case fully accepted the defense presented, declaring the claim totally unfounded.
Against the decision, the plaintiff lodged an appeal which, in the end, was partially upheld by the TJ/SP, in the judgment of the rapporteur of Des. Coelho Mendes, declaring the action partially valid and ordering the defendant operator to reimburse the plaintiff the amount relating to the medical act if it had been carried out within the approved network. The reasons for the solution brought to the case were not presented.
The operator, understanding that the judgment has no valid legal basis and, therefore, that it is contrary to law and case law, filed a special appeal, which was later rejected by the Court of State.
Certain, however, of the merits of her right and of the formal and material regularity of her appeal, the defendant then filed an interlocutory appeal on a special appeal with the aim of presenting her reasons to the Superior Court, succeeding in having the sentence of total inadmissibility of the appeal.
The AREsp judgment brought by the defendant was reported by Minister Maria Isabel Galloti, who in her vote acknowledged that the decision rendered by the State Court departs from the agreement signed by the STJ, in the sense that the operators are only required to pay for treatments carried out outside the approved network in absolutely exceptional situations, in particular in the absence of an approved professional in the geographical area covered by the contract and in emergency or emergency situations .
The minister’s decision comes at the right time, both to honor the case law formed within the Superior Court – which is regularly flouted by certain colleges of state courts -, and to bring greater legal certainty to the relations established between operators and beneficiaries, who, although largely governed by different rules, are constantly subject to lawsuits due to uncertainty about limits and contractual obligations.
The judgment in question has no binding effect for proceedings involving third parties and can always be appealed by the interested party, but it represents another important step towards greater stabilization of the complementary health, which will benefit society by enabling more people to access quality health services.
* Vitor Camargo Oliveira Santos, Lawyer at Vigna Advogados Associados, postgraduate in medical and hospital law at Escola Paulista de Direito – EPD.
About the office: Founded in 2003, VIGNA ADVOGADOS ASSOCIADOS is headquartered in São Paulo and has a presence in 9 Brazilian states. Currently, it has a panel of approximately 200 lawyers, experienced professionals, inspired by noble ideals of justice. The ability to understand the needs of its customers is one of the great differentials of the team, which allows it to develop economical, agile and creative solutions, without losing sight of responsibility and quality in the actions undertaken.