Family's Wal-Mart fight garners national attention

Friday, December 14, 2007
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.

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