Mollanco, Marta Ofelia et al. v. Unión Personal

The plaintiff filed a guarantee of protection of individual constitutional rights (amparo protection) against the Health Insurance “Unión Personal” to reestablish her as an retired affiliate of the health insurance based on article 10.h of Law 23.660. She had been a beneficiary during 20 years for being the spouse of the main affiliate. When her husband passed away, three months later the health insurance ended the plaintiff’s and her son’s contract. The respondent communicated that once the plaintiff received her husband’s pension, then she would be in the sphere of the INSSJP [Instituto Nacional de Servicios Sociales para Jubilados y Pensionados] and she wouldn’t be able to continue being a retired beneficiary of “Union Personal.” As she suffered from a disease, she hired a private plan in the same health insurance but the fee was no longer affordable.

The First Instance Civil and Commercial Court admitted the suit and ordered the respondent to reestablish the plaintiff as a retired affiliate. The health insurance filled an appeal with Civil and Commercial Courts of Appeal [Cámara Nacional en lo Civil y Comercial Federal] which revoked the previous judgement. The plaintiff filed an extraordinary appeal to the Supreme Court of Justice.

The Supreme Court of Justice held that the Courts of Appeal didn't provide sufficient arguments on why it did not take into account article 10.h of Law 23.660 that established "in case of the decease of the worker, the primary familiar group would remain as beneficiaries, for the period and conditions of inc a) of this article [that is, three moths since the cessation of the employment relationship.]. Once the expiration of the period, they could choose the continue as beneficiaries, paying with the contributions that the main beneficiary would have deliver. This right will end once they become the main beneficiary in the terms of this law." At the same time the Courts of Appeal held that the plaintiff lost her right to be an affiliate when she decided to incorporate herself to a private plan in the same health insurance. The Supreme Court established that the actions of Union Personal made her to acquire the new private plan because they refuse to maintain her as an familiar beneficiary, a right that she had based on article 10.h of the before mentioned law. For those reasons the previous judgement was revoked, and sent to the Courts of Appeal to dictate a new judgment in accordance with the Supreme Court's judgement.

"[...] en materia de seguridad social lo esencial es dar protección a aspectos básicos de las necesidades humanas, por lo que no debe llegarse al desconocimiento de eventuales derechos sino con extrema cautela, evitando incurrir en excesos formales, y de acuerdo con el principio in dubio pro justitia socialis. Ese enfoque se refuerza al reparar en que el conflicto afecta a una persona enferma, a quien le es menester someterse a tratamiento médico constante,de manera que la cuestión se ubica en el área del derecho a la salud, gobernada por el principio pro homine." Paragraph  IX.

"[...] in social security it is essential to give protection to the human basic needs, those rights only should be disregarded with extreme caution, avoiding to incur in excessive formalism in accordance with the principle in dubio pro justitia socialis. That approach is enforced in the case where a sick person is affected, who is in need to be in constant medical treatment, so the issue involves the right to health, a right governed by the principle pro homine." Paragraph IX.