07/12/2020
By Leonardo Neri and Barbara Oliveira
The recurring divergence of understanding between the 3rd and 4th Panels of the Superior Court of Justice has generated great legal repercussions, especially regarding matters related to health and consumer rights.
This is because, while the 3rd Panel demonstrates a protectionist tendency, with a history of defending consumers in relation to health plan operators, the 4th Panel has issued opposing positions, restricting consumers' rights in relation to operators.
In the same sense, the 4th Panel of the Superior Court, presided over by Minister Marco Buzzi, concluded that the ANS list of procedures to be covered by health plan operators was exhaustive, in a decision reported by Minister Luis Salomão, in REsp 1.733.013/PR, contradicting the understanding previously established by the STJ that the list would be exemplary.
The 4th Panel's understanding generates serious consequences for consumers using health plans, since the ANS list does not include a series of procedures and treatments, such as oral chemotherapy, leaving a large gap due to the list being outdated, which has caused enormous insecurity.
The divergence between the Panels had already been evident in other topics, such as the mandatory supply of medicines not approved by ANVISA (topic 990), as well as the right of inactive employees to maintain the health plan contract in the same way and at the same price as active employees (topic 1,034).
For the Brazilian Institute for Consumer Protection (IDEC), even though the issue of the exhaustive nature of the ANS list was not judged as repetitive, the understanding of the 4th Panel reflects a setback in consumer protection.
The 3rd Panel, chaired by Minister Moura Ribeiro, however, reaffirmed its understanding of non-taxativeness in the judgment of REsp 1829583/SP, even expressing its disagreement with the precedent of the 4th Panel.
The understanding of the 3rd Panel is supported by the majority of Courts, especially the Court of Justice of São Paulo, which issued Summary 102, determining that “where there is an express medical indication, the refusal to cover the cost of treatment on the grounds that it is experimental in nature or because it is not included in the ANS list of procedures is abusive.”
However, with the current divergence between the Panels of the Superior Court, the appeals that deal with the topic will be subject to the fate of electronic distribution, which can lead to two very different results depending on the Panel to which it is distributed, in true legal uncertainty.