Vulnerability of health plan users: analysis of repetitive appeal no. 1,809,486/SP (STJ issue no. 1032) and its possible contradiction to STJ summary 302 Fernanda Christina Parisi Sedeh Padilha, Luciano Pereira de Souza

Abstract

The massification of consumer relations meant that the principle of autonomy ceased to be the central core of the contractual relationship, giving way to the principles of objective good faith and equity. The Consumer Protection Code, an internal public policy, highlights the vulnerability of consumers in relation to service providers and, in order to guarantee the balance of contractual relations, declares abusive clauses null and void. A type of contract that deserves special attention is the health care contract, signed with health plans. In this context, the judiciary expresses itself daily in relation to abusiveness and, consequently, the nullity of contractual clauses of non-coverage, reimbursement, readjustment, among others. Superior Court of Justice, for instance, understood that the contractual clause that imposes a limitation on the length of hospitalization is abusive (precedent 302). Still in relation to abusiveness, the aforementioned court recently established an understanding that the imposition of co-participation starting in the thirtieth day of psychiatric hospitalization is not considered abusive (Topic 1032). In the first analysis, the imposition of a burden on the hospitalized consumer, who is hyper vulnerable, can mean the limitation of hospitalization. This study aimed to discuss exactly this paradox, reaching the conclusion that the imposition of co-participation in cases of psychiatric hospitalization can limit, albeit indirectly, the hospitalization time.