Facts born under the legislation prior to the current law on health plans (Law 9.656 / 1998) are sealed as perfect legal acts, so that the examination of contractual clauses stipulated between the parties, the terms of the policy, coverage and their exclusions they must not submit to subsequent legislation to the point of rendering them harmless or distorting their purpose.
With this understanding, the Plenary of the Supreme Federal Court decided that the health insurance law of 1998 does not apply to contracts signed before its effectiveness. This is an extraordinary resource, with recognized general repercussion (Theme 123), which is being appreciated by the virtual Plenary. The trial will only end definitively next Monday (10/19). He was suspended after a request by Minister Alexandre de Moraes, but was resumed in the virtual session started on 9/10. Nine ministers have already spoken out – Minister Luiz Fux considered himself suspicious.
The thesis proposed by the rapporteur, Minister Ricardo Lewandowski, is:
“The provisions of Law 9,656 / 1998, in the light of article 5, XXXVI, of
Federal Constitution, only apply to contracts entered into as of their validity, as well as contracts that, previously signed, were adapted to their regime, the respective provisions being inapplicable to beneficiaries who, exercising their autonomy of will, chose to maintain the plans unchanged old ones “.
The specific case concerns a woman who filed a lawsuit against Unimed Porto Alegre. Initially, she alleged abuse in the readjustment of the plan, the value of which almost doubled from one year to the next, after she turned 60. In addition, she was afflicted with esophageal cancer, but the health insurance denied her the procedure of esophageal manometry. She appealed to the courts and her request was upheld in the first and second instances – completion of the procedure, declaration of nullity of restrictive contractual clauses of coverage and receipt of R $ 4,000, as moral damages. The company then filed an extraordinary appeal with the STF.
Ministers Marco Aurélio, Cármen Lúcia, Rosa Weber, Alexandre de Moraes and Gilmar Mendes accompanied the rapporteur – forming a majority, therefore, for the provision of the special appeal.
The divergence was opened by Luiz Edson Fachin, for whom the health insurance law cannot be used to illuminate contracts prior to its effectiveness. However, Fachin dismissed the appeal, understanding that the provisions of the Consumer Protection Code are sufficient to support the contested decision.
Despite the disagreement, the new ministers agreed on the impossibility of the health insurance law being applied retroactively. The only exception to the retroactivity of the diploma refers to the possibility for the contracting parties to agree to the migration of the plan to the new regime, with possible increase in amounts, as provided for in article 35 of the law.
Click here to read the vote of the rapporteur (Lewandowski)
Click here to read Alexandre de Moraes’ vote
Click here to read Gilmar Mendes’ vote
Click here to read Edson Fachin’s vote