A existencialidade dos contratos de assistência privada à saúde: o impacto das cláusulas contratuais restritivas e das negativas de cobertura no direito fundamental à saúde e na concretização do objetivo e da função social do contrato

Abstract

The subject of this research is the private health care contract, analyzed from the perspective of the essentiality paradigm. The present study justifies it self by the current discussions regarding the mandatory coverage of procedures and events not foreseen in the written contract, as well as the legality of imposing clauses that are not consistent with the objective or social function of the juristic act. The general objective of this work is to evaluate the impact of restrictive coverage contractual clauses in the fulfillment of the fundamental right to health and the honoring of the existential nature of the contract. Thence, the proposition of an analysis of previous mentioned limitations under the parameters of the Consumer Protection Code and the trend towards the constitutionalization of private law was issued, highlighting the legitimate expectation and trust of the health plan user, considering it`s position position of vulnerability. Thus, by means of the bibliographical, descriptive, and explanatory research methodology, it is possible to understand that, starting from the problem of violation of the essential right to health, due to coverage restrictions that disregard the user's need in the actual case, the judicialization of health arises as a legitimate mean, and even as a need of warranty to an adequate medical treatement and hospital care.