Análise econômica dos contratos de planos de saúde: segurança jurídica e revisão contratual

Abstract

The supplementary model of medical assistance by private initiative, as provided in the Federal Constitution, allows the existence of a large number of contractual relations between health plans and users. When involved with conflicts and taken to the Judiciary, those juridical relations may show characteristics that are typical of the justice politization phenomenon, in which the magistrate relieves himself from the judgment legal criteria with the purpose to promote claims of social justice. The occurrence of such institutional anomaly, arising from the judicial activism, generates a conflict against the legal certainty principle, which is a guarantee of predictability of conducts for the recipient of law. Furthermore, the frequent violation of contractual terms, under the pretext of a social role to be played by the judge, offends the principles of the general theory of contracts, especially the principle of contracts requirement. The present work intends to analyze exactly the treatment given by the Judiciary to such conflicts, mapping the repercussions of subjective interpretations by judges in the legal and economic sphere.