Prepaid Medicine Insurance: Its Contractual Nature and a Constitutional Analysis of the New Regulatory Framework

Abstract

In Ecuador, in October 17 2016 the normative body called “Ley Orgánica que Regula a las Com-pañías que financien Servicios Integrales de Salud Prepagada y a las de Seguros que oferten Asis-tencia Médica” was published in the Registro Oficial. This legal body repealed the old Law that regulates the operation of private health and prepaid medicine companies, published in the Gac-eta Oficial No. 12, on August 26, 1998. The new normative body came into force 180 days after its publication in the Registro Oficial, causing a series of criticisms for its apparently unconstitutional content and incompatible with the constitutional rights of health, freedom of association and free-dom of enterprise. The objective of this article is to analyse the unconstitutionality action presented before the Constitutional Court by the highest representatives of the Health Insurance and Prepaid Medical Assistance of Ecuador. The constitutional and regulatory implications implied by the nor-mative body in analysis, for which a brief introduction to insurance is included where its historical origin, nature as a contract and a summary introduction to the branch of prepaid medicine are included. The study in question will demonstrate the imminent threat that the Prepaid Medicine Law represents for the insurance market; starting from the distortion of the elementary principles of risk calculation, the freedom of business under the subterfuge of the social purpose of insurance and the political-economic context that is related to the normative body.

Keywords: Insurance, premium, risk, unconstitutionality, contract, universality, gratuity.