HUMAN RIGHTS AND HEALTH PLANS

CRITICISM TO COMMODIFICATION, MORAL DAMAGES AND THE POSITION OF THE SÃO PAULO COURT OF JUSTICE

Abstract

The right to health comprises a social guarantee recognized at the constitutional level, to be provided universally and as a support for citizenship. Among the problems that affect the materialization of this right, it is identified the difficulty of certain subjects, due to economic and social criteria, to be able to receive this model of state assistance in an egalitarian way. This scenario opens the way for a new aspect involving health: the commodification of human rights and the consequent emergence of health plans. In addition to functioning as economic assets, health plans have also been the target of successive lawsuits involving compensation for moral damages. Based on a bibliographic approach, which uses references from both the legal and sociological scopes of health, and an empirical research that uses data from the São Paulo Court of Justice (TJSP), this work aims to demonstrate how access to health was affected by the phenomenon of commercialization of human rights and, mainly, as the Judiciary of São Paulo has, in actions derived from the Judicial District of Jaboticabal-SP, acted to settle conflicts that require compensation for moral damages in the face of health plan operators. Based on the analyzed demands, it is concluded that the protection of the TJSP in cases of this nature represents an important defense mechanism against the violation of the right to health, so that compensation for moral damages, in relation to access to private health, also Its purpose is to make up for state inadequacies in relation to this right.