A utilização dos serviços públicos de saúde em processos de internação hospitalar com plano privado

Abstract

Fundamental rights have never been so prominent with the outcomes after the promulgation of the 1988 Constitution. Based on the need for enforcement of rights enshrined, it was left for the state, now set as Rule of Law, to organize itself in order to perform such duties imposed upon it, especially in regard to social rights. In this context, given the epistemological break of this work to the social health law, universal rights and obligation of the State, the aim was to investigate the concepts of Provision and Promotion of the Public Health Service, in order to understand the organization and functioning of the state health system, called Sistema Único de Saúde (SUS), from the analysis of existing legislation and its policy for health promotion, recovery and protection. Moreover, a parallel regarding the relationship to private health insurances has been made. Their bids were verified, as well as complementarities and antagonisms with SUS through the analysis of current legislation, especially the Law 9.656/98. Grounded on the comparative analysis of SUS institutes and private health insurances, the focus of the discussion shifts to the point of jurisprudential divergence existing in the contemporary Brazilian legal practice in this highest court, the so called Supremo Tribunal Federal (STF), derived from disputes arising from lower courts. Facing the legal proceedings, the institute of general repercussion towards STF was then analyzed, as well as its competence to trial in seat of an extraordinary appeal to the declaration of unconstitutionality of federal law. Finally, based on all the information that has been presented, it was sought to define the possibility of compensation of private health insurances to SUS in the case of services of the latter used in hospitalization where an insurance contract existed. In order to do this, support on the most traditional sources of law was used, especially the jurisprudence on this subject, and general implications and its jurisprudential pronouncements of instances of first and second degree, as well as the analysis of the legislative framework that regards the topic, giving emphasis on the federal law that was subject of legal dispute against STF.