Do Rol da ANS à judicialização em massa: uma análise jurídico econômica de como o intervensionismo estatal fomenta o litígio sistêmico na saúde suplementar

Abstract

This paper analyzes, from a legal and economic perspective, the causes of mass judicialization in supplementary healthcare, arguing that it is a predictable symp tom of the Brazilian interventionist regulatory model. The main objective is to demonstrate how the establishment of health as a universal fundamental right in the 1988 Constitution, disconnected from the reality of resource scarcity, underpinned an arrangement (Law No. 9,656/1998) that transferred state duties to the private sector. The research uses the deductive method with a qualitative and theoretical-documen tary approach, based on Law and Economics. The method contrasts the perspective of Welfare Economics, which justifies ANS regulation, with the foundations of the Aus trian School (Mises, Hayek) regarding the price system and the economic calculation problem. The results show that judicialization, which began in the SUS (Unified Health System) due to the tension between the constitutional promise and budgetary reality, was transposed to the private sector. The ANS regulation, guided by the thesis of an "imperfect market," imposed a syncretic model where private operators, based on mu tualism, are compelled to bear public obligations of unlimited cost. It is demonstrated that interventionism, by controlling products (mandatory coverage list) and prices (in dividual plan adjustments), destroys the price system and generates severe distortions: the artificial scarcity and disappearance of individual plans and a drastic market concentration, with a 41% drop in the number of operators (2007-2021). It is concluded that systemic litigation is the direct result of a regulation that, in an attempt to correct "market failures," creates barriers to entry and disorganizes the sector, char acterizing a crisis of interventionism itself.