JUDICIALIZATION ON THE PRIVATE HEALTH CARE SECTOR IN BRAZIL: A GOVERNANCE PERSPECTIVE

Abstract

The article examines dysfunctional judicialization in Brazil's private health sector as a problem of governance. It adopts an interdisciplinary approach integrating Governance and Organization Theory to explain why judges systematically depart from statutes, contracts, and binding precedents in health litigation, even when norms are clear and higher court jurisprudence is well-established. The central thesis holds that this pattern results from three concurrent causes analyzed within North and Williamson's institutionalist framework: at the first level, an incentive structure that renders the cost of non-conforming decisions essentially zero for the judge; at the second, a historically entrenched cultural substrate of resistance to impersonal rule application, irreducible to legislative reform; at the third, the cognitive capture of judicial decision-making by heuristics, activated with particular intensity by litigation narratives structured around urgency and life-threatening risk. The predictability of the pattern is itself evidence that the problem is one of governance, not individual deviance. The article concludes that effective responses must be calibrated by causal level: incentive redesign and accountability mechanisms at the formal institutional level; specialized courts and decisional transparency at the informal institutional level; and systematic NAT-Jus technical support, qualified deference to ANS, and reinforced argumentative burden when judges depart from regulatory parameters at the cognitive level.