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Top court refuses to hear appeal of Jackson woman fighting Wal-Mart seizure of trust fund

Wednesday, March 19, 2008

The Wal-Mart company health insurance plan won't seek to take other assets from a family that has lost its last court battle to keep a severely injured woman's trust fund from being seized, a company representative said.

Former Wal-Mart employee Debbie Shank of Jackson racked up $469,000 in medical costs after a 2000 traffic collision. In a subsequent lawsuit, GEM Transportation Inc. agreed to pay $1 million as a settlement of her claims. Debbie Shank received $417,477 from her share after legal fees; her then-husband, Jim Shank, received $200,000, and about $119,000 remained after legal bills.

Wal-Mart's employee health plan, citing a clause in the health plan that required its costs to be repaid after a settlement of claims, sued James Shank to regain the money it spent. But Debbie Shank permanently resides in a nursing home; the money from her settlement was put in a trust fund to pay for her continuing medical care.

Wal-Mart won that suit and every appeal; the U.S. Supreme Court denied James Shank's last appeal Monday when it refused to take the case.

A fair share of the trust fund had already been spent when the health plan sued; James Shank on Tuesday estimated the remaining value at $200,000 to $300,000, and worried that Wal-Mart would seek to regain the remainder from him by taking other assets.

"If they come after that much, I don't know what I will do," Jim Shank said.

But while the plan wants the remaining trust fund money, it won't seek to recover more than that, a company representative said on condition of anonymity.

"The plan is willing to settle," the Wal-Mart representative said.

Debbie Shank is a resident of Monticello House. Since the lawsuit began, she has lost her personal attendant, been required to share a room with another resident and forced onto Medicaid and Medicare to cover her medical expenses.

Jim Shank said Debbie Shank has become depressed recently. "She is just aware enough of what is going on to be miserable," he said. "She is 52 years old and knows she lives in a nursing home and that is as good as it is going to get."

Shank also is bitter toward a court system that he said is not interested in justice. "They are content to sit around and do nothing," he said. "They are going to review George Carlin's obscenity case" -- referring to the high court's decision to hear a case over language in broadcasts -- "but they can't hear mine. Maybe they can come back in 30 years and review mine when I am dead and gone."

Wal-Mart was only defending the integrity of its employee health plan, supported by contributions from the company and employees, the company said in a statement issued Tuesday by spokeswoman Daphne Moore.

"This is a very sad case, and we understand that people will naturally have an emotional and sympathetic reaction," she said in the prepared remarks.

The plan paid for Shank's bills for an accident caused by a third party to keep the family from worry, Moore said in the statement.

"While the Shank case involves a tragic situation, the reality is that the health plan is required to protect its assets so that it can pay the future claims of other associates and their family members."


335-6611, extension 126

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This is a sad story. This is the reason the United States needs a National Health Care Plan for all of the citizens of the country. I hope the people go to the polls and vote in November and completely change the way we have been operating in the past eight years. This is a very sad story and my heart goes out to the Shank family. Who would had thought this would happen right here in america.

-- Posted by swampeastmissouri on Wed, Mar 19, 2008, at 7:26 AM

What should have happened was that the health insurance plan should have joined the suit against the trucking company. The Shanks mistake was to settle without knowing what the consequences would be. Wonder who their lawyer was who did not look into this.

Insurance companies are for profit entities. If they can recoup money they will.

-- Posted by interesting on Wed, Mar 19, 2008, at 8:44 AM

This is in fact a very sad story but national health care is not the fix for one we as a nation cant afford it. The answer hear was to go after the transportation companys insurance company. I understand the Shanks wanting to put this behind them but they should have never settled with GEM Transportation for the million when medical bills alone were half that.

-- Posted by Lower_Taxes on Wed, Mar 19, 2008, at 9:49 AM

Poor Walmart

-- Posted by laffgapian on Wed, Mar 19, 2008, at 10:43 AM

No, we do not need a National Health Plan...we need honesty, integrity and support of those who have extraordinary medical issues. That isn't going to happen because, as they so stated - they had to look out for their health plan ! which means their pocket books. The amount of money to the Shank family is monumental, whereas to corporate America it is chunk change. They just don't want to be seen as having compassion for anyone. I wish.....well, I just wish lots of good things for this family - they've endured more than anyone should have to over the past few years, my prayers are with you all.

-- Posted by Let'scommunicate on Wed, Mar 19, 2008, at 10:51 AM

Wal Mart is not the only company with these rules on repaying after a settlement but they always get the black eye in media reporting. It seems the family was ill represented by their attorney. Also, Mrs Shank was provided a personal assistant and a private room which quickly depletes the settlement funds.

-- Posted by conservababe on Wed, Mar 19, 2008, at 12:44 PM

If you want a National Health Cre Plan, talk to a Canadian. If your doctor orders an MRI or a Catscan, he'll send you right over to the hospital to get it. If your doctor orders one for you in Canada, it will be scheduled 4 months out, and you'll have to drive 300 miles to get it. In England, peoplea are resorting to pulling teeth with plyers in the garage.

-- Posted by Yankee Station on Wed, Mar 19, 2008, at 12:52 PM

For once, I agree w/ conservababe. The Shanks' attorney did not represent them well. Any settlement from the transportation company should have taken into account all claims that WalMart's employee health plan would want to recoup. Walmart was not responsible for the accident, the transportation company was and should have had to pay for all expenses already incurred by WalMart, as well as future expenses for Mrs. Shanks' continued care. Shame on the short-sighted attorney. All said, the Shanks are fortunate WalMart isn't asking for more than the trust, which it rightfully deserves. Too bad the attorney can't be sued. I'd be embarrassed to claim I was the attorney for this case.

-- Posted by gofigure on Wed, Mar 19, 2008, at 1:21 PM

Well, I think this is a big black eye for Wal-Mart and illustrates the poor employee benefits they have. Always low prices, but at what cost? Yes, the people should not have settled for what they did, but they probably had little choice under the circumstances. Could they have done without care for Mrs. Shanks for a few years while litigation drug on and on and the trucking company finally filed for bancruptcy. The $1 million settlement sounds like it was likely some sort of cap on the amount the insurance company was required to pay for an individual claim, although I don't know that or the financial condition of the trucking company.

I'm not a fan of big government by any means. More correctly I would say I'm not a fan of wasteful government. But I do agree with swampeast that this country needs some sort of health insurance plan that covers everyone one way or another if we want to stay competitive with the rest of the world. There needs to be guaranteed affordable, portable coverage.

The present health insurance system is a big part of the problem of why health care costs are increasing faster than overall inflation. A single payer plan may not be the best way, but I also wouldn't rule it out if done right. It is a fallacy to say that anything the government does will cost more than the private sector. It is almost always true, but doesn't necessarily have to be. With the poor accountability of management to shareholders at many of the largest corporations lately, I think the gap is closing.

Part of the problem also is that everyone has come to expect Cadillac coverage for a Chevrolet premium. People have to run to the doctor when they have a hangnail. The drug companies are busier coming up with new diseases that their medicines will cure than coming up with new medicines to cure the disease we have always had. And then they market them on national TV directly to the public. It seems to me that what there is in this country is an epidemic of hypocondria that keeps the doctors busy with insurance patients and effectively prices private pay patients out of the market. Everybody wants first dollar coverage. Does that really make sense? Insurance should be for catastrophic or longterm illnesses and injuries, not for routine things like colds. Medical savings accounts make a lot of sense and should be promoted more than they are for paying routine medical costs.

We also need to change our laws to allow individuals to purchase prescription medications from pharmacies in other countries and reimport them. We are told that this ban is to "protect" us from unregulated foreign pharmacies. I think it is mainly to protect the profits of the drug companies, so that the United States continues to pay the highest prices for drugs and effectively subsidizes the price of medicine in other countries. We shouldn't dicatate the price for drugs, but if the drug companies are selling cheaper in other markets, we should be able to buy where the price is best. That is free trade. If fake drugs and scams are such a big concern, then let regulated US pharmacies pool orders and be held accountable for quality. We would gradually see domestic drug prices fall and prices in Canada and Europe rise as foreign regulators were forced to raise their price caps in order to maintain supply. Eventually prices would come to an equillibrium and it would no longer be necessary to buy outside of the US.

-- Posted by coffeelover on Wed, Mar 19, 2008, at 3:35 PM

If Walmart wanted the money so bad where was their attorny when this case went to trial ? Sounds like blood sucking leachs to me

-- Posted by realamerican1 on Wed, Mar 19, 2008, at 10:15 PM

I saw this story on CNN this morning. This is a terribly sad story.. not only is Mrs. Shank permanently insured, but Mr. Shank is battling prostate cancer and the unimaginable, one of their sons was killed in Iraq. Also, Mr. Shank is trying to keep in mind their other son will need funds for college soon. Well, who really did 'drop the ball' with this case. It's obvious the settlement was not near enough. Their attorney should have known about the 'small print' on the Wal-Mart policy that gives Wal-Mart the right to recoup dollars they were out for claims if the claimant receives an insurance settlement. I don't believe those clauses are that uncommon, it's just that most average people don't notice them until it's too late. Also, when people choose an attorney I think they need to ask the attorney they are considering hiring how much experience he or she has with whatever type of case they have. Discuss this at length so that the person hiring them has complete confidence that this attorney is the right attorney for their particular problem. They may have to talk with several attorneys before deciding which one is right for them. Some attorneys do more work with domestic issues such as child custody or divorce, some are criminal attorneys and some do personal injury. There are many fields that attorneys practice.. the Shanks definitely needed an attorney who had great expertise in personal injury. I do not know the exact circumstances of this case, but I think Mr. Shank needs to look into who, if anyone, 'dropped the ball' in his case and see if he has another law suit.

-- Posted by DKKCCG on Mon, Mar 24, 2008, at 11:41 AM

I feel for this family. They have been through a lot. However, from my understanding the wreck was not the fault of the trucking company. I could be wrong. I donít have proof that this is the fact. It is nothing more than hear-say. I just think that all facts need to be stated when Mr. Shank starts bashing Wal-Mart and the trucking firm. Others have commented on the lack of ability of their lawyer, I agree with them. Where was he when he should have been negotiating a life long settlement? They knew from the start that Mrs. Shank would be permanently residing in nursing homes. Why did the lawyer not get more for the family?

The Wal-Mart issue is something that many companies have, not just this one. If she had worked at Target, heíd be nationally bashing that company. If she worked at a hotel and they had this same policy, heíd be bashing them.

Mr. Shank does work two jobs like the St. Louis post reporter said on the MSNBC news report, but at no time did he state that he runs his own business and works for a local realtor. Itís not like heís busting his rear anymore than the average person around here. There are a lot of people who work more than one job to support their family. Itís not that uncommon anymore.

He likes to play on the fact that he still has a son to put through college. I went to high school with his son and he is a great, strong willed person who Iím sure is so independent he doesnít need this financial support that keeps getting thrown in to reports for sympathy. The guy is so intelligent that heís probably got scholarships looking him up! This is a person who made things happen for himself and didnít need anyone doing it for him.

Also, why does this last report not mention how Mr. Shank played the system in the past by divorcing his wife so she could get more benefits from being single? To me itís just showing that heís gotten to the point where itís not about his wife anymore and itís more about publicly bashing a corporate company and a policy that a corporation has had in place for a long time. It was her signature on the line of the benefits policy, wasnít it?

I donít know the exact facts of this case and most information I get about the case comes from the paper or news reports that are easily found on the internet. The reports I have read have formed the opinions that I have of Mr. Shank. I think it is time for Mr. Shank to realize that him blaming Wal-Mart is just a way to alleviate the irritation of knowing his lawyer didnít get a settlement for the life long care for his wife and now the settlement is gone. I do truly feel for this family but itís time to back off and realize that a policy is a policy and a lot of companies and insurance groups have this one. Life is not fair and the world doesnít cater to your sympathy pleas. The poor-poor pitiful me thing is getting old. Please stop it and quit making this a national thing. Yes, it is making the point to make people nation wide think of Wal-Mart as a Big Meany, but itís making people locally think negative of you. Blowing this thing up in the media wonít change the outcome that is inevitably going to happen.

I apologize if I have offended anyone, but I do believe that Iím not the only one with these opinions. It is nothing more than my opinion but I hope others who agree may also share their feelings.

Just a side note: I shop at Country Mart because it makes for a quicker shopping trip. I'm not the dedicated WalMart Shopper I'm sure some of you thought I was!

-- Posted by December1 on Fri, Mar 28, 2008, at 11:34 AM

I must correct myself. I assumed he was putting his oldest son through college. I don't know his youngest son and must apologize that I assumed the son I attended high school with was the one he was sending to college. I never realized that there was a third son. I only knew the oldest two from school. I did also find one tv interview that commented on the divorce issue to help receive the extra benefits. I'm not for certain how old the interview was. I apologize that I overlooked this information before I posted my first comment.

-- Posted by December1 on Fri, Mar 28, 2008, at 1:21 PM

It is fundamental that when there is liability for causing injury that everyone that had injury, or financial loss or expense - including the health insurance plan that paid the resulting doctor and hospital bills - must be involved in any settlement. It is as absolutely standard that the insurance company, or health plan, as a financially injured party, has the same right to recover what it paid out to doctors and hospitals, and what it may have to continue to pay, on behalf of its policy holder because of the injury caused by the third party, as it is for the injured party to recover their uninsured costs plus pain and suffering money. When everyone who should be in the room is invited to join in, stories like this do not happen. The moral of this story is: Donít sue someone, and settle, without every plaintiff that should be there with you being invited to be on board. Make sure that everyone knows about, and agrees to, the settlement before you accept it. It is also fundamental that any good attorney should know this and before it is too late ask the question: Where are the representatives from the health insurance plan that paid the bills so far to review and add their ok to this settlement?

-- Posted by Old_guy_from_Illinois on Wed, Apr 2, 2008, at 6:50 PM

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