A judicialização das demandas de saúde suplementar: uma análise das divergências jurisprudenciais e do impacto da lei n. 14.454/2022

Abstract

The present study has the general objective of analyzing the evolution of the jurisprudential discussion about the exhaustiveness of the role of the National Supplementary Health Agency, culminating in the sanction of Law 14,454/22 and its respective impacts on the contractual relationship of supplementary health. For this, firstly, the historical evolution of the legal system in the health sector is studied, more specifically in the culture that supported the creation of the Unified Health System (SUS), as well as the regulation of supplementary health through the National Health Agency Supplementary (ANS). In this sense, we study the guarantee of the right to health as fundamental established by the 1988 Constitution and the historical context that culminated in this. Then, the jurisprudential decisions within the scope of the Superior Court of Justice are analyzed about the nature of the list of procedures established by the ANS, which generates divergence about its exhaustiveness or exemplariness. Finally, it understands the context of the advent of Law 14.454/22 and how its sanction impacts the understanding of state courts, which use it as a parameter to highlight the exemplary role. In order to carry out this research, a qualitative study, of a bibliographical and documental nature, is used. As a result, it is understood that subjectivism about illnesses and their respective treatments hinders the unanimity of understanding, so that the national jurisprudence tends to adopt mitigated taxation, in view of the particularities of the contractual relationship between beneficiary and private company of supplementary health.