Parametrização de danos morais nas ações de plano de saúde: análise com base nos julgados de primeira instância da comarca de Fortaleza/Ce.

Abstract

According to the 1988 Federal Constitution, health is a fundamental right and the State must offer health assistance to all citizens. However, it is possible that private entities provide such service, the so-called supplementary health. Due to the difficulty in accessing the Unified Health System (SUS), many people have opted for contracts with private providers, and the swelling that this has caused in the health insurance providers increasingly deny administratively the requests of their contractors. These, in turn, recognizing their hypossufficiency, seek the Judiciary to try to reverse the negative that they perceive as undue, requiring, in addition to the obligation to do, compensation for moral damages. Thus, the phenomenon of the judicialization of health occurs and the discussion in this research covers the entitlement or not of moral damages, since the Superior Court of Justice has already established the understanding that moral damages are presumed in cases of undue denial, however, the Courts and Magistrates of first instance follow divergent understandings, with neither objective criteria nor parameters. In view of the above, this work aims to investigate the parameterization of moral damages in lawsuits involving health plans in the District of Fortaleza/CE, demonstrating the divergence of understandings of the sentences through a methodological strategy of data analysis on the information available at the portal of the Court of Justice of the State of Ceará, in consultation with first-degree judgement, e-saj TJCE from June 2019 to December 2019. In addition, a questionnaire was applied to magistrates in an attempt to achieve a more accurate evaluation of the data collected.