Os desafios da saúde suplementar no Brasil: entre a judicialização e a interferência nas relações privadas

Abstract

The present study analyzed the challenges faced by the supplementary health sector in Brazil, focusing on the growing judicialization and its implications for the sustainability of private relationships. The research contextualized health as a fundamental right, as guaranteed by the 1988 Federal Constitution, which provides for the supplementary participation of private entities. However, the difficulties encountered by the Unified Health System and the expansion of the supplementary health market highlighted the need for specific regulation assigned to the National Supplementary Health Agency. The study investigated how the judicialization of supplementary health reflects consumer dissatisfaction with contractual decisions and regulations that fail to meet all their needs, resulting in tensions between contractual compliance and the realization of the right to health. The research problem addressed the impacts of judicial intervention on the economic and financial balance of health plan operators and consumer protection, considering the increasing operational costs and the risk of sector unfeasibility. The initial hypothesis suggested that judicial actions, while necessary in many cases, could lead to unintended consequences, such as increased service costs and the exclusion of beneficiaries. The methodology used was descriptive, based on the analysis of legal texts, specialized doctrine, regulatory documents issued by the ANS, and recent jurisprudence from higher courts. The results highlighted that while the Consumer Protection Code (CDC) plays an essential role in protecting beneficiaries, its cumulative application with Law No. 9.656/1998 requires careful consideration to avoid contract distortions. It was found that judicialization, by imposing obligations beyond the contractual limits, impacts the actuarial calculations of operators, contributing to increased premiums and the exclusion of less privileged users. The study concluded that harmonizing judicial decisions with ANS regulations is necessary to balance the economic interests of operators and the fundamental rights of consumers. Finally, the relevance of the topic for legal and social debate was reaffirmed, emphasizing the importance of more efficient dialogue between the Judiciary, the Legislature, and regulatory bodies. This balance is essential to ensure the effectiveness of the right to health without compromising the economic sustainability of supplementary health, contributing to the improvement of public policies and the regulatory system in Brazil.