Standing in a Boulder courtroom on a blustery Friday evening, waiting for the jury to return with its verdict, Jennifer Latham feels a knot twisting in her stomach. She thinks she might throw up.
She takes a few deep breaths. The nausea passes just as the jury starts filing in. Where this sick, anxious feeling came from, she has no idea. But it has nothing to do with doubt. She knows she is right, knows she is going to win.
She has known it all along.
It's been a long haul to get to this moment. Four years of acrid legal wrangling with Time Insurance, the Milwaukee-based health insurance company Latham sued for breach of contract and bad faith. Countless hours of hearings and depositions. Two weeks of a hard-fought trial, riddled with objections and bench conferences and relentless scrutiny of her medical records. At times she found it almost impossible to sit still, fidgeting in her chair or retreating from the plaintiff's table to sit with her parents in the back of the courtroom.
But none of that matters now. She's right. She's going to win. She has known it since — well, since she first realized what the insurance company had done.
The knowledge didn't come all at once. She has no memories of the accident and only fragmentary images of the next few weeks, as she struggled to learn to walk and read again and deal with the effects of a traumatic brain injury. But once she figured out what had happened, she knew it was up to her to do something. She had, she says now, a calling.
In 2005, Latham and her husband, Alex, were severely injured when a meth dealer fleeing police ran a stop sign in Longmont and broadsided their car. The couple suffered broken limbs, head trauma and a host of other injuries. Both spent weeks in the hospital.
At the time, Alex Latham had no health insurance. Jennifer did — or so she thought.
She'd signed up for health insurance with Time, also known as Assurant Health, five months before the accident. But as the hospital bills began to roll in, the company launched a review of her application and prior medical records, a process known as "post-claim underwriting." A Time employee then wrote a letter that Latham's attorney, Marc Levy, describes as "a sucker punch to the gut," informing her that the company was rescinding her policy — not just canceling it, but obliterating it, as if it never existed — because she had failed to disclose information about her health history on the application she'd submitted.
For people unable to obtain group health insurance through their employer, rescission of an individual policy can be a kind of death sentence. Once you've been rejected for alleged fraud on your application, it's almost impossible to obtain health insurance elsewhere. Lawyers for Time, the nation's oldest individual medical-policy provider, say that rescission is a rare remedy, affecting only half of 1 percent of its clients.
"It's a way to keep this kind of insurance as affordable as possible," defense attorney Ellis Mayer told the jury. "The fact that certain people are rejected for insurance is part of the business."
But Time's use of rescission to avoid paying pending claims has come under fire across the country. The company has run afoul of Colorado regulators over its rescission process and was fined $2.1 million in Connecticut for improperly denying hundreds of claims. The practice has also triggered a barrage of lawsuits — most of them settled out of court. Last summer, Time's CEO was grilled before Congress about the fact that his company had saved $150 million in five years by rescinding 8,500 policies, sometimes over vague symptoms or notations in medical records that the patient was never told about. For some pundits, the company has become the poster child for avaricious, weasel-word insurance companies in the debate over health care reform.
Latham's attorney told the jury that Time's application process was confusing, that the insurance agent asked his client summary questions and then filled out the convoluted form for her, and that the "investigation" in search of fraud was cursory at best. "They've never produced a scintilla of evidence that she had any intention to mislead," Levy said. "This is a game of gotcha. They can take away anybody's insurance policy."
Jennifer Latham's medical bills to date total close to $200,000. Unable to work, she and Alex lost their home in Longmont to foreclosure in 2006; they are now getting divorced. Jennifer lives on disability checks and walks with a rod in her leg. She and the two youngest of her four children have had no private health insurance since Time rescinded their policy.
People who have known her a long time — her mother, her thirteen-year-old daughter — say that Latham is a different person than she was before the accident. She was once a voracious reader, a take-charge mom, a teacher with the patience of Job. Now she's sensitive to bright light and noise, has trouble focusing, is forgetful, impulsive, gets upset easily. Yet there's one thing, they say, that the brain injury didn't alter: her sense of right and wrong.