A responsabilidade civil das operadoras de planos de saúde pela violação positiva do contrato

Abstract

This monograph deals with the possibility of civil liability of health plan operators due to the positive violation of the contract. The study is relevant in today's scenario due to an intense violation, under health insurance contracts, of contractual obligations that exist beyond the primary obligation. Failure to comply with these so-called annexes, derived from the principle of objective good faith, leads to the configuration of an institute called, by doctrine, a "positive breach of contract", which is not provided for in Brazilian law. However, the discussion of civil liability for the positive breach of the contract by health plan operators has increased to the extent that noncompliance with annexed duties is recurrent within these contractual relationships. Initially, then, the present study takes care of the principle of objective good faith, examining its functions, that is, hermeneutics, limiting and creating rights and duties. The analysis, in principle, is aimed at understanding the role of objective good faith in the relaxation of the autonomy of the will, especially when it manifests itself in the creation of rights and duties such as the duties of protection, information, secrecy, loyalty and cooperation . Next, a study of the health plan contracts, their characteristics and legal regime is carried out, examining and dismantling the legal dispositions that govern the legal relations established between the health plan operators and the beneficiary consumers. Afterwards, civil liability is assessed, the possibility of adoption of the institute, not provided for in Brazilian law, of the positive violation of the contract for noncompliance with the annexed duties and civil liability systems applicable to health plan operators in the event of noncompliance with these duties . Finally, based on concrete cases judged in several courts in the country, we conclude by the possibility and we discuss about how the civil liability is given for the positive violation of the contract in the Legal System.