Healthcare companies often discredit professionals who provide services without any justification. To do so, they use a generic provision present in all contracts of this nature, which allows the termination of the agreement without cause.
The issue has already been brought before the judiciary by injured professionals, who argue that Resolution 1616/2001 of the Federal Council of Medicine (CFM), in its article 1, prohibits the dismissal of the physician without just cause, being The right to defense is guaranteed, as follows: “The dismissal of a doctor bound by referral, accreditation or association with the health insurance carrier is prohibited, except for a motivated and fair decision, guaranteeing the doctor the right of defense and contradiction in carrier ”.
However, State Courts continue to address the issue with some caution. In general, the decisions found recognize the legitimacy of disqualification, even if unaccompanied by a just reason, provided that the formal requirement of the contract is observed (prior notice).
The arguments used by the judges are, in short: (a) the possibility of unilateral termination of the contract is permitted by the Civil Code (article 473); (b) CFM resolutions do not override the Act and do not oblige health plan operators.
There is a relevant precedent drawn from a decision by Judge Claudio Luiz Bueno de Godoy, then a member of the 1st Chamber of Private Law of the Court of Justice of the State of São Paulo, which, despite having been unsuccessful in the judgment of appeal No. 9162054-76.2008.8.26.0000, brought new elements capable of raising more relevant discussions on the subject.
The judge argued that the contracts in question - formalized between doctors and health care companies - invariably reflect the rights of consumers who use health plans, a fact that would be sufficient to mitigate the principle of private autonomy that allows companies unjustified disqualification.
According to the logic used in the decision, confidence must be preserved in this specific sector of the consumer market, which is particularly important because it is related to the fulfillment of basic value, which is health. referenced.
There is also another ground of equal importance: unilateral discrediting, in certain cases, represents a clear violation of the principle of objective good faith, which implies the breach of the duty of loyalty and cooperation that should guide all legal relations.
The reason for disqualification, therefore, should always be technical, not commercial. The contractual principles established in the Civil Code are tools that can change some paradigms and allow medical professionals to curb abusive conduct perpetrated by health insurance companies - despite the shyness of jurisprudence in adopting such an understanding.
Dr. Alan Skorkowski
CBR legal advice