By surrectio, STJ maintains trusteeship in sister’s health plan

Based on the legal institute of surrecti, the 4th Panel of the Superior Court of Justice kept an elderly person in the health plan of his curator and sister, after the operator tried to exclude him because it considered that he did not meet the requirements to be a dependent. Surrectio is the guarantee that repeated conduct generates an “acquired” right.

For the collegiate, even though it is not possible to give a broad interpretation to the self-management plan contract to include an unforeseen person in the dependent hypothesis, the fact that the operator had allowed the brother to appear in this condition for more than seven years generated the acquisition of law, as the passage of time gave rise to the legitimate expectation that the situation would be maintained.

The elderly man, who suffers from mental illness, has been under the care of his sister since 2007. In 2011, she enrolled him in the self-management health plan as her dependent. However, in 2018, the operator announced that the curatorship would be excluded, as the regulation did not admit the incapable brother of the incumbent as a dependent.

The court of first degree and the Court of Justice of the Federal District and Territories (TJ-DF) denied the request to keep it in the plan, understanding that the exclusion was lawful.

Extended Interpretation
The rapporteur, Minister Marco Buzzi, explained that the self-management health plan, managed by a non-profit association, is funded by the beneficiaries themselves and by the sponsoring company, with the purpose of providing medical services to a closed group.

According to the magistrate, the inclusion of people who were not considered when planning coverage and calculating the costing method could generate actuarial imbalance, which would harm the group itself, either in the form of a decline in the quality of the service, or in terms of reason for the need to readjust the monthly fees.

In this way, the minister clarified, the proposal for a broad interpretation of the contractual provision on who may be dependent is not adequate, as the authors of the action intended with the argument that, by extension, the rule of the regulation of the plan that authorizes the inclusion of incapable adults who are children or stepchildren of the holder.

Violation of objective good faith
According to the rapporteur, the Civil Code defined ethics as one of its founding principles, and established the need to observe a behavior of probity, honesty and respect for legitimate expectations between the negotiating parties at all times of the obligational relationship, under penalty, including characterization of abuse of rights.

The minister recalled that any violation of objective good faith and the principle of trust is capable of creating, modifying or even extinguishing obligations, with the jurisprudence of the STJ having admitted the application of the institutes of suppression and gives surrecti in these cases.

Citing specialized doctrine, Marco Buzzi explained that the suppression means the suppression of a right due to its non-exercise for a certain period of time, while the surrecti is the emergence of the corresponding right for the opposing party.

omission behavior
In the case under examination, the rapporteur verified that there was an effective contract between the parties in which, upon payment, the participation of the holder’s brother in the plan was admitted. For the minister, this is a situation already consolidated by time, which created the legitimate expectation that his brother was entitled to coverage.

“With the support of the Institute of surrectiin the need to protect the objective good faith of the contracting parties, the protection of legitimate expectations, as well as the prohibition of the adoption of contradictory behaviors, it is understood that, given the particularities of the case, the omission behavior of the health operator during a significant lapse time, exceptionally, implied the assumption of the obligation to provide the health care service to the curator, as a dependent of his sister and curator”, he concluded. With information from the press office of the Superior Court of Justice.

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