A judicialização nas relações de consumo da saúde complementar: a ótica dos magistrados acerca dos plantões judiciários

Abstract

This thesis deals with the judicialization of supplementary health, particularly in urgency and emergency services that require priority in care due to the imminent risk of death or worsening of patient injuries. The main objective is the analysis of the role of judicial intervention in conflicts between insured clients with service providers and private health plans operators. Specific objectives include: to discuss the role of judicial offices in urgent or emerging conflicts of users with service providers and private health plan operators; analyze the perspectives of magistrates about decisions of judicial offices involving urgent actions postulated by insured persons; identify, in the field of supplementary health, positive and negative implications of demands to the Judiciary. The methodology was qualitative - descriptive; the population sample included 45 magistrates – first judges, judges of appeal and ministers of the High Courts. The study scenario was the Court of Justice of the State of Rio de Janeiro, located in the capital, in addition to the Superior Court of Justice and the Federal Supreme Court in Brasília. The data collection instruments comprised a characterization form for magistrates and a questionnaire based on the individual structured recorded interview technique. The analysis of the form was performed through descriptive statistics with graphical and tabular display of the results. The treatment of interview information was the analysis of thematic - categorial content. The magistrates have stated that the role of judicial offices is the immediate intervention to preserve perishable rights, based on the demonstrated needs and plausibility of the author's claims. In this regard, from de perspective of the magistrates, the consumer has the quick guarantee of enforced compliance of the obligation by the operators of private health plans, since the greatest value that is sought to protect is the dignity of the human person above contractual issues. On the other hand, it was highlighted that although the deferred injunctions will lead consumers to the right of return by the opposing party in order to consolidate the judgment of the magistracy's certainty in the final judgment of the action. Another perspective was the disjudicialization with emphasis on improving the information qualification policy and the conciliation of conflicts in the administrative sphere, especially the National Supplementary Health Agency, in addition to the necessary coordination with the Public Ministry, Judiciary, consumer protection organizations and operators of private health plans such as the construction of a specific Technical Assistance Nucleus of supplementary health. With regard to the effects of the judicialization, there are positive and negative implications for all agents of supplementary health, from the litigious solutions to psychological suffering of the consumer, respectively. It was concluded that the ideal is the out-of-court settlement of demands in the competent administrative spheres without neglecting the judicialization as a right included in the Brazilian Constitution of 1988, therefore, can not be violated or prevented in resolving conflicts when it is the option of the citizen who suffers an injury or threat of their rights.