The parents of a minor with Phelan-McDermid Syndrome (chromosomal abnormality caused by the loss of a small portion of chromosome 22, which causes gastrointestinal problems, seizures, motor movement deficiencies, brain abnormalities, kidney malformations, lymphedema, and infections repeated, among others) wanted to take out an insurance policy for major medical expenses in favor of their daughter.
The insurer rejected the request, stating that it did not have a product that would cover the specific protection needs of her daughter.
The parents promoted an indirect amparo lawsuit arguing that the real reason for the rejection was the condition of the girl, for being a person with disabilities.
The district judge dismissed the amparo trial considering that the insurer does not have the character of responsible authority for the purposes of the trial.
The parents who were dissatisfied with the decision of the district judge filed an appeal for review.
The review appeal was resolved by the Third Collegiate Court on Criminal and Administrative Matters of the Fifth Circuit, with the support of the First Collegiate Circuit Court of the Auxiliary Center of the Fourth Region, with residence in Xalapa, Veracruz of Ignacio de la Llave, who A unanimous vote determined that the rejection of the request for insurance for major medical expenses in favor of a minor with a disability by an insurer constitutes an act of authority for purposes of the origin of the indirect amparo trial.
This is because in the case of people with disabilities, insurance companies are obliged to apply the measures provided for in national and international protection legislation in favor of that fraction of society.
The amparo judgment under review considered that in contracting this type of insurance, insurance companies do not only carry out a private activity, but carry out the materialization of a public policy that obliges them to act in a specific sense when developing indirectly an activity that belongs to the State (guaranteeing the right to health of people, which must be carried out in conditions of equality and non-discrimination, whose protection corresponds, in principle, to the State).
Therefore, the appeal for review resolved that the cause of inadmissibility of the indirect amparo action against the rejection of the request to contract medical expenses insurance for a minor with a disability is not updated, since the action of the insurer It was not limited to the private sphere, because even though the execution of the insurance policy is based on the right to freedom of contract and autonomy of will, it is also true that the activity of the insurers is carried out in the exercise of a special authorization granted by the State in accordance with article 25 of the Law on Insurance and Bonding Institutions, where one of the legal assets protected by entering into insurance contracts for major medical expenses is the right to health of people .
Therefore, the refusal to enter into an insurance policy for major medical expenses must be analyzed by the jurisdictional authorities to determine if it was issued in accordance with the rights to equality and non-discrimination, because it is a minor with disability.
As provided in the relevant thesis of the heading: “ACT OF AUTHORITY FOR THE PURPOSES OF THE ORIGIN OF THE INDIRECT AMPARO TRIAL. IT CONSTITUTES THE REJECTION OF AN INSURANCE COMPANY TO THE REQUEST TO CONTRACT MAJOR MEDICAL EXPENSES INSURANCE IN FAVOR OF A MINOR WITH A DISABILITY, BECAUSE THE RIGHT TO HEALTH IS IMMERSED UNDER CONDITIONS OF EQUALITY AND NON-DISCRIMINATION”, published in the Judicial Weekly of the Federation and its Gazette, digital registration 2025622, on December 9, 2022.
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