Fighting the corporate suit

For years, Debbie Shank went from job to job, finally settling into the routine of night-shift work, stocking shelves at Wal-Mart in Cape Girardeau. Why not? The job met her only two criteria -- it helped pay the bills and kept her days free to spend with her three boys.

After a year and a half on the job, a tractor-trailer slammed into her mini-van, leaving her with serious brain damage that rippled into a series of nasty complications and lingering side effects.

She can't walk. Her arms are shriveled up. Only two fingers work.

"She can't really talk to us anymore," said her husband, Jim, 52. "Her short-term memory is gone. She might remember somebody from 20 years ago, but she couldn't tell you what happened yesterday."

The company insurance plan she had at Wal-Mart paid the medical bills. Later, the Shanks sued the truck driver and the trucking company, using the award money to help pay for around-the-clock professional care at Monticello House, a Jackson nursing home where Debbie Shank, now 50, lives.

The family feels like it has to fight to survive. Now, they are bracing for another fight -- this time against Wal-Mart, the world's largest retailing giant.

On Aug. 8, Wal-Mart's health plan committee sued Debbie Shank in federal court in St. Louis, asking for all of the $417,000 she got in the civil suit. Additionally, according to the court papers, the committee is also seeking at least $51,000 more from the Shanks' settlement that the Shanks have already spent on court costs and lawyer fees.

The lawsuit claims that the health plan spent more than $469,216 in Shank's medical bills. The lawsuit also demands attorney's fees, costs and interest for what is spent to sue the Shanks.

"It would have devastating repercussions on them," said Maurice Graham, one of the Shank's lawyers in St. Louis. "These funds were put aside by the federal courts to take care of her for the balance of her life."

Wal-Mart corporate spokesman Marty Heires said the health plan is actually a separate entity and is not a part of Wal-Mart. He said there is an administrative committee made up entirely of Wal-Mart employees that administers the plan.

The committee has yet to decide whether to follow through with the lawsuit, he said. The lawsuit was filed to beat a statute of limitations that was about to expire, Heires said.

"The complaint hasn't even been served to the Shanks or to their lawyers," he said.

Shank signed up for the voluntary health-care plan, Heires said. Part of the laws of the plan is that if an injured associate files a third-party lawsuit and is awarded a judgment, the award is to be used to repay the health-care plan.

"This is all about preserving the plan's assets," Heires said. "This is a tragic situation. There's no doubt about that. The administrative committee is doing what it has to under the rules of this plan."

Heires also said that the rules are in plan material provided to employees before they decide whether they want the health insurance or not.

"Obviously, it's up to the associate to read it," he said.

Premium deductions are withheld from employee checks, he said. He said he had no idea when the committee would make up its mind to follow through with the lawsuit.

Meanwhile, local lawyers who deal with insurance law said it's increasingly common for health insurance companies to try to recoup its pay outs.

Cape Girardeau attorney Al Spradling III has dealt with several such cases, usually representing the business side. He said most health-insurance plans have recoup provisions in them.

It's a contractual agreement between employees and the health-care plan, Spradling said.

"When you sign up, you agree that if you get hurt and later sue, you will reimburse your health care plan," Spradling said. "They have a right to recoup a portion of what they spent. They're entitled to get their money back."

Spradling said that these plans are paying out hundreds of thousands of dollars. He said the insurance plans are asking for the money back because it's a fairness and equity issue.

"At least that's the theory," Spradling said.

John Cook, a Cape Girardeau attorney who represents plaintiffs in these types of cases, doesn't see it that way. Ten years ago, federal laws prohibited health insurance companies from suing an injured party who had won an award from a third-party lawsuit.

Then, the Employee Retirement Income Security Act, or ERISA, changed all that. Now, insurance companies can sue to recoup losses from third-party lawsuit awards, he said.

"Back then, you paid your premiums for coverage and if you got hurt, you got paid," he said. "ERISA gives a bonus to the health insurance company. Not only do they make a profit off of your premiums, they get their money back."

Cook sees it as a political problem created by Congress, which should be undone by Congress.

As far as Wal-Mart goes, Cook, who is not the Shanks' lawyer, has little good to say about what they're doing to the Shanks.

"This is absolutely in the corporate spirit of Wal-Mart," he said. "What they're doing here is an unadulterated evil. I once had a friend tell me that even corporations have souls. If that's true, Wal-Mart's is in trouble."

At her Monticello House room, Debbie Shank is confined to a wheelchair. She tries to talk sometimes, often about her cat, "Mr. Furry Pants." She also asks in slurry speech about her sons, one of whom is in the U.S. Army and likely headed for Iraq next year.

After sleeping in a bed alone, Jim Shank visits every day. He feeds her. Takes care of her.

He does this while holding a full-time job at Southeast Missouri State University, where he works in risk management and maintenance, trying to keep the working environment safe.

Asked to describe his wife before the accident, he has a simple answer: "She was a mom. That's all she ever wanted to be. She lived for her kids."

She's different in other ways, too. She suffers violent mood swings, Jim Shank thinks, because she is frustrated by her condition.

Jim Shank is prepared to fight Wal-Mart, no matter what it takes. If Wal-Mart wins, he may have to sell the van he bought that has a wheel-chair lift that enables her to make brief visits home. She may not be able to have her own room.

He may even have to divorce her to make her eligible for Medicaid.

It may seem weird, but Jim Shank insists he's not too worried over the Wal-Mart lawsuit.

"I'm pretty much calloused," he said. "I'm seething with anger, but I pretty much keep it inside. We've been through too through much for this to mean anything. But if they want a fight, they've got it."

Still, he doesn't shop at Wal-Mart anymore.

Chuckling, he said: "I go to Country Mart."

smoyers@semissourian.com

335-6611, extension 137