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Family's Wal-Mart fight garners national attention

Friday, December 14, 2007

(Photo)
Debbie Shank, left, disabled by injuries caused in an automobile accident, gave nurse Rickie Scott, director of nursing for Monticello House in Jackson, a big smile in this 2005 photo.
(Southeast Missourian file)
FOX News, the NBC "Today" Show and The Wall Street Journal have all, in recent weeks, taken an interest in the case of Debbie Shank of Jackson, the former Wal-Mart employee injured in a collision with a tractor-trailer in 2000.

In 2005, Wal-Mart's employee health insurance plan sued for, and eventually won, a judgment in federal court that the money in a trust fund for her care should be turned over to the company to help repay the $469,000 in medical bills she rang up after the accident.

Shank has still not recovered from the crash. She lives in the Monticello House nursing home, her care supported by Medicaid and Medicare. She has permanent brain damage, uses a wheelchair and has difficulty remembering events, including the funeral of her son, Jeremy Shank, who was killed in Iraq in 2006.

The U.S. 8th Circuit Court of Appeals upheld the judgment against the trust fund, and a last-chance appeal is pending acceptance by the Supreme Court. And those aren't the only legal issues. Southeast Missouri Hospital sued her in April to collect $17,000 in unpaid medical bills left over from her treatment.

There are some bright spots in her story. Wal-Mart Watch, a union-funded group critical of the giant retailer, promised to match funds donated on her behalf. On Thursday, spokeswoman Stacie Temple said, the group cut a check for $10,054 to deposit into a fund for her maintained at Bank of America.

Donations "came from across the country," Temple said. "They were mostly less than $100, usually $30 or $40. We just had an outpouring of support."

But the funds that once supported her care are frozen by the courts, said Jim Shank, her former husband. Though still devoted to Debbie's care, the couple was divorced this year to enhance her ability to access benefits from Medicaid and Medicare. His income would have blocked much of that help.

"It came to the point where they froze the money, and there wasn't much else I could do," Shank said.

Still, he said, paying for items not covered by the taxpayer-supported health programs costs $500 to $1,000 a month, including the difference between a Medicaid room and a private room. Debbie Shank's mood swings mean she cannot share a room, Jim Shank said.

The issue involved in the Wal-Mart lawsuit is called subrogation, the practice of recovering money paid for care for injuries caused by a third party. Insurers have become more aggressive in recent years in seeking to recover money won in injury lawsuits.

In Debbie Shank's case, she won a $1 million settlement from the trucking company, GEM Transportation Inc. Of that amount, $200,000 was set aside for Jim Shank, and he received $119,000 after legal expenses. Debbie Shank's settlement amount was $700,000, which after legal expenses were deducted amounted to $417,477. The money was put in a trust fund for her care.

While the money was available, Debbie Shank was able to have a personal care attendant every day. That is no longer the case, Jim Shank said.

Jim Shank was unsure of the amount in the Bank of America account. That money is handled by Debbie Shanks' eldest son, Christopher Shank, who is out of town this week. Contributions may be made at any Bank of America branch just by asking to help the Deborah Shank fund, said Terry Tuschhoff, community bank executive at the Bank of American branch in Jackson.

Regardless of the amount, it is not near enough to support Debbie Shank's long-term care, Jim Shank said.

All the publicity is putting Wal-Mart on the defensive. "This is very sad case, and we understand that people naturally will have an emotional and sympathetic reaction," said John Simley, company spokesman.

But the medical plan stepped in to cover the medical expenses when the accident occurred, he noted, and relieved the Shanks of the immediate worries about bills. Only after the third party makes a settlement does the plan seek reimbursement, he noted.

"The reality is we are required to protect the assets of the health plan so it can continue to pay the future health claims of associates and family members," Simley said.

At this time, Debbie Shank's frozen trust fund has $284,000, Simley said, and the health plan will not be able to recover the full $469,000 paid out.

On other issues, he said he can't comment because the litigation is not finished.

Temple called on Wal-Mart to take a leadership role, so that at least in cases like Debbie Shank's, where the money award in a lawsuit is insufficient to cover future care, they don't seek recovery. "Just because something is legal doesn't mean that it is right," she said. "It would seem it would be beneficial to Wal-Mart to drop the case, from a public relations and business standpoint."

For Jim Shank, however, the issue is more personal. Debbie Shank's long-term care is at stake. "We are just waiting to see what happens," he said.

rkeller@semissourian.com

335-6611, extension 126


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Don't be upset with Wal Mart, Insurance, or Medicaid/Medicare. If you are in an accident, use insurance funds or other funds to cover your care caused by this accident, and win a settlement, please understand that money has to be paid back to the source who first paid the bill. Of course a million bucks is not enough! Your lawyer should have researched long term care a little more. It is not Wal Marts fault you didn't get enough money. Go back to the cause. A wreck. You settled. As sorry as I am for you, that is the bottom line.

-- Posted by becarefulwhatyouwishfor on Fri, Dec 14, 2007, at 7:02 AM

isnt that why they pay for insurance?

-- Posted by Hunter S Thompson on Fri, Dec 14, 2007, at 7:13 AM

to becarefulwhat you wish for-

You forgot one important fact. That is WHY you pay insurance premiums every month. Your insurance premiums that you pay each month is to cover all medical expenses incurred. The money from the lawsuit was to cover longterm care now needed. Wal-Mart is completely heartless in trying to recover the medical expenses incurred because that is the whole point of paying insurance premiums. And no - the monthy insurance premiums do not always equal the amount paid out- that is the gamble of the insurance industry. Boo hoo when the insurance company pays out more than the premiums paid in.

Besides - didn't anyone catch the part of Southeast Hospital also suing for payment. Obviously Wal-Mart didn't pay all of the medical expenses to begin with.

The worse part of this story is this family whose lives were so greatly effected by this tragic accident has had an endless legal nightmare thanks to Wal-Mart the American Monopoly who doesn't truly care about the people of this great nation.

It is a known fact that Wal-Mart employees are usually on Medicaid because their pay is low and they are not all covered under Wal-Mart insurance. Some states have even passed legislation to try to combat the "Wal-mart effect" that drains our tax dollars with so many Wal-Mart employees having to be on governement programs in order to survive. Maryland was the first state to pass such legislation and of course Wal-Mart is trying to challenge this legislation....go figure.

-- Posted by Skeptic1 on Fri, Dec 14, 2007, at 8:15 AM

No, wishfor--the bottom line is that insurance companies shouldn't be able to avoid payment because they decide that the policyholder doesn't need the money. When the insurance company cheerfully accepted the premium they were placing a bet that they wouldn't have to pay out. They lost the bet. The financial status of the policyholder should have nothing to do with it. It would be the same thing if I never filed an insurance claim and later decided I wanted my premiums back.

-- Posted by CapeRacer on Fri, Dec 14, 2007, at 8:38 AM

I feel very sorry for the Shank family, but I think the continual inclusion of her son's death in Iraq is a sympathy ploy. She can't remember lots of things, but every time her memory issue is raised the only thing mentioned is that.

Also, I'm finding this whole thing a little bit odd. Mr. Shank spoke to the congregation at First Baptist in Jackson, at his own request, and told the congregation he had no ill feelings towards Wal-Mart and that they weren't doing anything wrong, only what they had to do according to the policy guidelines. If what he said in church is true, why all this? I think the answer is obvious.

-- Posted by SEMOfan80 on Fri, Dec 14, 2007, at 8:39 AM

Jim I'm behind you and Chris all the way.

-- Posted by captainmysterious on Fri, Dec 14, 2007, at 9:01 AM

Surprise, surprise...another Wal Mart bashing article by our fine newspaper. The reporter just happened to forget to mention that MANY companies have the very same policy, maybe even yours.

-- Posted by conservababe on Fri, Dec 14, 2007, at 9:04 AM

It was determined that the insurance from the tractor trailer is responsible for the payment of bills and that is why Wal-Mart insurance wants to be paid back. That is standard with the insurance company. If I am injured in an accident and someone else is at fault their insurance is responsible for my medical bills, not my inusrance. My insurance would refuse to pay.

-- Posted by SWBG on Fri, Dec 14, 2007, at 9:11 AM

It would be one thing if Debbie had fully recovered and was able to work to pay for some of this debt; it is something entirely different when she depends on this money simply to live. Wal-Mart does not go after everyone in these cases- Why would they go after such a tragic case? And why would they wait for five years, when a lot of the money has already gone to put her care into place? I think the mention of Jeremy was to show all the family has been through. Yes, Wal-Mart is a business, but can't their billions of dollars afford a heart?

Case in point, I'm right behind Jim and Chris, all the way.

-- Posted by katj85 on Fri, Dec 14, 2007, at 9:31 AM

Well, on the surface I agree that Wal-Mart's insurance plan seems heartless and probably is with regard to being miserly claim payers. I expect they are not the only ones, though and with higher and higher medical costs this is likely to happen more often until something is done to fix the broken health care funding in this country.

Where more fault might lie is with the lawyers for the Shanks who might have done a better job of foreseeing that this would happen and for not getting the settlement set up so it was only for her future medical expenses. Maybe they thought that they had. Otherwise I think they should have pushed for a settlement large enough to cover paying back Wal-Mart insurance for their costs.

I realize that the family faced a dilema of having no money for Mrs. Shank's ongoing long-term care if they didn't accept a quick settlement. They probably couldn't have afforded a protracted legal battle.

I'm not a big fan of legislative intervention in most things, but wouldn't a law making funds in a trust account for a personal injury settlement immune to attachment, while at the same time giving an insurer the option to sue the party who caused the injuries for recovery of medical costs seperately at their own expense without regard to any settlement already reached with the insured be something to think about? Or perhaps requiring the insurer to sign off on any settlement and fully specifying what the settlement monies could be used for. It just seems that a big insurer would be better able to take a $400K hit than a working family.

Yes, insurers can't pay out claims of this size and not try to recover some way, but taking it from the poor victim of the accident is a poor way to do business. If the defendant in this case had gone bankrupt or not been able to pay, then Wal-Mart's insurance would have had to cover the whole cost anyway. They should have been able to handle that. Now they simply grab up the poor woman's money for future care and shift the burden to the taxpayers.

Some may say that the Shanks should have had good insurance, but they are likely to be the ones that THINK they have good insurance themselves.

-- Posted by coffeelover on Fri, Dec 14, 2007, at 9:46 AM

Well, at least this newspaper was honest about 'Wal Mart Watch' being a union based organization. They and the unions would like nothing better than to unionize that big plum...Wal Mart. They appeal to the emotional side of the issue and gather in sheepls like the poster clg63701 with non factual information.

BTW...the family of the resident of the nursing home has evidently spent much money on personal care and privacy while there.

I agree with others who have said that they should look to their lawyers who were paid most adequately for an incompetent job for answers.

-- Posted by conservababe on Fri, Dec 14, 2007, at 10:43 AM

Why is it necessary, in the United States of America, for a married couple to divorce so that long-term care and medical bills can be covered? Something similar happens to senior citizens. I remember learning of a couple in Florida, both widowed, who wanted to marry but could not because their benefits would be affected and they couldn't afford to live as a married couple. I was appalled to find that many senior couples had to make the choice to give up the basics of living to marry, "live in sin", or choose to be apart because of this. As for Debbie Shank, I don't know whose fault this is, but it certainly isn't the Shank's fault and they shouldn't have to break up their family to pay the price.

-- Posted by Maxine_the_Magnificent on Fri, Dec 14, 2007, at 10:59 AM

Mary

Yes, the couple in Florida had to CHOOSE whether to get married or live in sin. But, they could have gotten married and received less money from Social Security. Thems are the rules, you know. Many younger widows choose to remarry and lose all benefits.

-- Posted by conservababe on Fri, Dec 14, 2007, at 11:19 AM

look the woman is crippled for life, the fathers world is in chaos and the son is dead. its called a family tragedy who dosen't get it. all bets are off and this lady should be taken care of for the rest of her life. walmart as an employer is the pits, bottom of the barrel, pullman type plantation much like china take the job and like it or..be shot. old sam walton were he alive wouldn't work under his own conditions. walmart can afford to take care of this family for life on one days profit and have plenty of change end of story. the insurance companies, "big violators of the law" i.e. Katrina. lawyers legal charlatans as mark twain might imply. why take so many words to show one is not a decent feeling human being to which this can also happen? To the person who stated that the family is looking for sympathy by mentioning the death of thier son in iraq. that chicken hawk republican should be castigated for throwing stones at our warriors memory. Simper Fi.

-- Posted by wyndiciti on Fri, Dec 14, 2007, at 11:47 AM

windictiti

There is a law against impersonating a marine. We know you're not one because they would never take anyone as stupid as you into their ranks...and you can't spell Semper Fi.

-- Posted by conservababe on Fri, Dec 14, 2007, at 11:59 AM

Walmart also has a clause in their policy that says first year employees have a max payout for medical expenses of $25,000.00 .....which doesn't go very far if you are diagnosed with cancer. The employee is liable for the rest of the bills out of their pocket. Remind me again about why we pay our insurance premiums??

-- Posted by taxpayer on Fri, Dec 14, 2007, at 12:52 PM

taxpayer

I believe your key words are "first year employees". You can choose to supplement your insurance with private pay for the first year.

-- Posted by conservababe on Fri, Dec 14, 2007, at 1:03 PM

Not to say I have no sympathy for these people but this admittance being published surprised me: "...the couple was divorced this year to enhance her ability to access benefits from Medicaid..." in view of the fact that somewhere in the Medicaid regulations is a statement to the effect that couples separating with the intent of obtaining Medicaid is considered fraud.

-- Posted by gurusmom on Fri, Dec 14, 2007, at 1:47 PM

I knew when I posted people would be upset. It doesn't matter what insurance company you have... if you have a monetary settlement in which an insurance company (any company including medicare and medicaid) have paid or in the process of paying the bill, the money must be reimbursed to the insurance carrier. You know those people on TV who promise you money in advance if you have a lawsuit pending??? Yeah, that's the basis for that! I'm not saying it's right. I'm saying that's the way it is. Gurusmom is so correct. The husband has now admitted to Medicaid fraud. God forbid it's pursued! BUT it could be. Don't get me wrong... I feel for this family. It is a sad, sad situation in which lives were changed forever. I understand Mr Shanks probably didn't realize what the long term cost was going to be... That's where a good lawyer would have helped!!! Also, as for Southeast Hospital, there is a little known law that does not allow for a nursing home resident to be sued... with that being said.. there was the settlement for medical bills that may have played into this. Remember folks, when we want insurance companies to pay long term benefits such as this, the cost is defrayed into our insurance cost... hence many insurance premiums being raised or policies going to a lesser coverage. Personally, I feel it is not the insurance company who is liable for this injury, but the person who caused the accident who put her in this state. We don't need to be mad at Wal Mart. We need to be mad at the driver and the company he worked for!!!!! Mr and Ms Shanks, no disrespect for any of these posts I have made are meant toward you. My heartfelt sympathies are with you. I will keep you in my prayers every night.

-- Posted by becarefulwhatyouwishfor on Fri, Dec 14, 2007, at 5:16 PM

One other thing, for those who don't realize how settlements such as this pay out:

1. Lawyer gets his cut first

2. Primary insurance is repaid.

3. Secondary payor source is repaid.

4. Medicare/Medicaid is repaid.

5. Out of the rest, a fund is set up for the patient. and then the family gets a portion in a fund... if there are small children involved.. hopefully the fund is set up so the children will not have to forfiet the money for care of parent..

Sucks don't it?? Now we know why personal injury, including those going for healthcare claims, are so eager to "help"!!

-- Posted by becarefulwhatyouwishfor on Fri, Dec 14, 2007, at 5:24 PM

I remember this case. The crash occurred on Mo 177 out toward Proctor and Gambol. The driver of the van that Ms. Shank was in decided to make a U-turn, and did so in the path of a tractor-trailer unit that was behind them. I don't know if the driver of the van was cited for the U-turn that apparently caused the crash, but somehow the trucking company was found liable and ended up paying a 1 million dollar judgement. I notice the writer of this article omitted this part of the story, and only referred to Ms. Shank being involved in a crash and received a settlement. I think we are being fed ca-ca and expected to swallow it hook line and sinker. While I feel sympathy for Ms. Shank for being injured because of the U-turn made by the driver of her van, I also have to say that Walmart bears no obligation to her in trying to recup the money they "loaned" her. Walmart supplied money for treatment and care when she had none with the legal expectations of being paid back after a settlement was reached. Certainly resonalble I would say. I do have sympathy for the truck driver who could not avoid striking the van when the driver pulled to the right shoulder and made a U-turn in his path, and for the trucking company and their insurance company who got whacked by this injustice. Maybe her lawyer ought to cough up and use part of the $500,000.00 he received for "representing" the Shanks". Now that would be something wouldn't it?

-- Posted by cowboy on Fri, Dec 14, 2007, at 6:36 PM

Re: Cowboy

"I do have sympathy for the truck driver who could not avoid striking the van when the driver pulled to the right shoulder and made a U-turn in his path"

Don't you know? As a truck driver, he's expected to be able to read the minds of other drivers to know about all of the inexplicably bone-headed things they are about to do before they know they are going to do them. He was probably found liable because (and I'm just hazarding a guess here) he was so concerned with the wellbeing of the others involved in the wreck that he failed to change his duty status in the log book from "driving" to "on duty not driving", and therefore his logbook was not current when the officer asked to see it.

I drive. Even if I am rear-ended by a drunk driver that blows a .30 while I'm sitting at a red light, I expect that I'll probably be ticketed for the wreck...and even if I'm not, I'm surely going to be sued. Lawyers see a truck and assume deep pockets...even if they aren't. Sadly, that's just the world we live in.

-- Posted by dixietrucker on Fri, Dec 14, 2007, at 7:39 PM

dear dixietrucker

Perhaps you should only blog when you aren't drunk because your comment didn't make an ounce of sense.

What I stated is a fact found on many reports of wages paid in the US. The legislature I mentioned that passed in Maryland is actually named after WalMart due to the fact that WalMart doesn't properly cover their employees with medical coverage and keep their wages too low to live off of. This same legislature and similiar ones are coming forth in more than 20 states pending legislative approval and it is being called the WalMart effect.

These are truthful facts that it if you did any research you would find to be true.

So what if your g/f is making whatever....? Good for her. The fact and truth remains that MOST of the employees of WalMart across the whole USA are not making enough to live off of and are on social government welfare programs. This has made national headlines. Why don't you read some of them on the internet - look at http://www.wakeupwalmart.com/facts/

or look at

http://walmartwatch.com/

or look at

http://www.nytimes.com/2005/10/26/busine...

BE INORMED BEFORE YOU BLOG YOUR PROFANITY.

Truth hurts- doesn't it

-- Posted by Skeptic1 on Fri, Dec 14, 2007, at 9:28 PM

clg

If Wal Mart is such a bad employer, then why do people line up for job applications when one opens?

-- Posted by conservababe on Fri, Dec 14, 2007, at 10:28 PM

dixietrucker

I just love you...politically speaking, of course. You say so well what I want to say.

-- Posted by conservababe on Fri, Dec 14, 2007, at 11:06 PM

Nobody had an answer for my main question. Why did Mr. Shank sing a totally different tune when speaking to members of First Baptist Church than he's singing now?

-- Posted by SEMOfan80 on Fri, Dec 14, 2007, at 11:48 PM

Welcome to our wonderful world of American Health Care and the things that kick everyone in the teeth when they are down. Miss Shank should move to France. I think everything would be taken care for her. That's where I am moving when I retire.

-- Posted by rnc119 on Sat, Dec 15, 2007, at 1:08 AM

Live in sin...why would you even say anything like that conservababe. Is there really a need? If there is please continue.

-- Posted by rnc119 on Sat, Dec 15, 2007, at 1:15 AM

Why wasn't the driver of the van Ms. Shanks was riding in held responsible? When you think about it, that person is the one who started this mess by making a bad driving choice. I mean really, did this person not have deep enough pockets to consider being held responsible? This is not Wal-Marts fault, this is not the truck drivers fault, the person who caused this got away scott free.

-- Posted by whathappenedhere on Sat, Dec 15, 2007, at 6:17 AM

I found out years ago that if you were injured and got a settlement from the other party my insurance co. would take the amount they paid out of that settlement. I also found something else out that I did not know and that is in the state of Mo and also under federal law no employer has to pay you for holidays or vacation. You have no rights to breaks or lunch also. I looked that up on the Dept. of Labor website in both the US and State of Mo places. We take a lot for granted don't we? Makes me wonder what else could happen.

-- Posted by joekool on Sat, Dec 15, 2007, at 6:42 AM

The judicial, insurance and many more programs in the US are so off base it is a wonder we survive...daily.

To the Shank family there has been not one, but two deaths, one in reality and one in the fact that Mrs. Shank is locked in a body that is fairly useless for any kind of normal life. Compassion, love of neighbor, helping hands and HEART are not part of any corporations bylaws. The dollar is their idol.

I pray, not only for the Shank family for the loss of their Marine who gave his life to help keep our country safe from terrorists, for us to be able to continue to practice our freedom of speech and for all the greedy, money hungry and selfish people from the White house to any house in the US. I would like to see them have to live in this families situation (no matter whose fault is was) for a year. Then see how legislation would be changed.

-- Posted by Let'scommunicate on Mon, Dec 17, 2007, at 9:08 PM


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