The false collective and unilateral termination by health insurance companies: reflections on topic 1047 of the STJ Renato Braz Mehanna Khamis, Guilherme Schmidt Hayama, Felipe da Silva Corralo Chagas

Abstract

Background: This article seeks to present concisely the health plans named by the doctrine as false collectives and relate them to the act practiced by health plan operators of unilaterally terminating the contract, especially after having to bear the cost of some therapy or medication that is considered to be “high cost”. Problem: Unilateral termination generated theme 1047 of the Superior Court of Justice, in which it discusses the validity of the contractual clause of unilateral termination for collective business groups with less than 30 (thirty) members. Objectives: a brief analysis was carried out and the problem was correlated with the current legislation and with the guiding principles of contracts, with emphasis on the social function of the contract, in order to seek to understand the acceptance of unilateral termination by the Courts. Methods: using the analytical, descriptive and qualitative technique as the research method, with a narrative review of literature, bibliographic analysis as well as the case law of the Courts of Justice of the State of São Paulo. Results: The ANS annually sets a specific index for updating individual contracts as well as those considered false collective contracts. However, these are not respected by health insurance companies, generating significant litigation in the discussion of the indexes as well as unilateral termination. Conclusion: at least until the final decision on Theme 1047, unilateral termination by health insurance companies has been accepted, as long as there is a suitable justification.