Judicialização da saúde: a possibilidade de aplicação da lei 12.732/12 aos contratos de planos de saúde suplementar

Abstract

Nowadays, cancer is regarded as a public health problem, and the high mortality rate in developing countries is mainly due to late diagnosis or delay at the start of treatment. Law n. 12.732/12 talks about the first treatment of a patient with proven malignant neoplasia, provided free of charge by the SUS, which should begin within 60 days. The purpose of this study is to analyse the possibility of applying the aforementioned legislation to supplementary health plan contracts, in a context of constitutionalisation of law and irradiation of fundamental rights in private relations. In the face of failures of the State and health plan operators in the implementation of the fundamental right to health, we observe the phenomenon of health judicialization, in which the magistrate, through the exercise of harmonization or consideration of conflict of principles, will apply the best solution possible to the specific case. Considering also that the contracts of supplementary health insurance are in the context of consumer relations, they should be interpreted according to the Consumer Protection Code, primarily under the auspices of the principle of objective good faith.