From the Elmira Star-Gazette, Feb. 19, 2010:

“Most Americans agree we need health care reform. What we do not want is for the government to take over the industry. Start with tort reform. Doctors are paying six-figure checks for malpractice insurance a year, and these figures increase yearly, as do all our premiums. The reason Washington does not want to address this problem is most of them are lawyers (with friends who are lawyers) getting rich on malpractice law suits.

The second problem to tackle is the sale of insurance across state lines (you can buy insurance only from a company within your own state). Open up the lines – its called competition – which in turn make you sharpen your pencil when you quote your goods.

Next – jobs. Unemployment’s hovering around 10 percent; we tried to spend our way out time and time again, but it does not work. Cut taxes across the board. If we Americans have more, we spend more. Consumer spending creates jobs. It’s time we stand up to the corruption once and for all. Maybe its time we elected some people that actually live the life the people now in Washington so want to control.”

- Pat O’Donnell

To counter Mr. O’Donnell assertions, I can begin with the results of a comprehensive study published by University of Connecticut Law Professor Tom Baker.  He revealed that the cost of all malpractice claims in the United States – including legal fees, insurance costs, and payouts – amounts to less than one-half of 1 percent of all U.S. health care spending.

I’d also like to share this CNN clip of Senator Richard J. Durbin making a strong, compelling argument against the Republican push for malpractice reform:

Simply put, lawsuits are not to blame for our health care system’s deficiencies – they are simply political scapegoats.

Malpractice claims actually decrease spending by encouraging doctors to perform properly, avoiding costs associated with caring for people injured by their mistakes.

Moreover, tort reformists want to shift responsibility from private insurance companies to taxpayers.

According to the Institute of Medicine, 98,000 people die from malpractice each year.  Currently, victims are compensated by negligent doctors’ insurance companies.  By limiting doctors’ exposure to lawsuits, victims will have to look to public entities to cover future medical treatment, lost wages and physical and occupational rehabilitation.

Yes, that’s right– if you limit recoveries in lawsuits, the medical costs will be borne by YOU the taxpayer rather than the medical malpractice insurance carrier!

Although tort reform has the potential to save money – by allowing doctors to save negligible amounts of money in insurance premiums – it is much more likely to lead to increased costs for the rest of us.

As I mentioned, my cousin and I have many opinions in common, but this is a subject on which we diverge. I’m sure Mr. O’Connell will agree with me in an appreciation of a healthy debate!

Thank you,

Christina
________________________________
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

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Roy A. Mura, posted about the new law on his excellent blog, Coverage Counsel.

Roy gives a very technical explanation, but the real gist of it is that this new law will prevent health insurance carriers in N.Y. from getting away with their historic practice of “double dipping.”

You can check out Roy’s detailed analysis of the new bill in his post “New York State Legislature Passes New Anti-Subrogation Law.”

Below is my less technical explanation of what this new law means to the average person.

What is subrogation – and what’s so bad about it?

As a concept, think of subrogation as you paying someone else’s debt and then your attempting to collect from the person that originally owed the debt. No problem if you do it fairly, but insurance companies have been adding their own twist to the idea.

An example would be: You know Jim owes Mary $40. You run into Mary, she mentions your friend Jim’s debt and you pay it. Then you ask Jim for the money. Fair enough. But what if Mary also asked Jim for the money again? And he paid it again? If he paid you back too, he’d be out $80. Mary would end up with $80 – twice the amount she risked!

The analogy is close to what the insurance companies have been doing for years. First, they charge you HUGE premiums for your health coverage. Then, if you get hurt, and you successfully pursue a personal injury case, they tell you you have to pay them back for the health bills they paid on your behalf!

So essentially, you pay for coverage and then when you use the coverage that you paid for, they say they should get reimbursed IN FULL from YOUR money!

Thankfully, this law will stop this horrible double dipping. I am just glad that the whole health care debate is finally shining a spotlight on some of the egregious past practices of health insurance companies!

Thanks again to Roy A. Mura for his detailed posting about the anti-subrogation bill and his permission to link to it from the NY Injury Law Blog.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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I believe the question, and my reply, will resonate with many readers – especially during this time of high unemployment in New York and Pennsylvania. With the e-mail writer’s permission, I have put together this post in the hope that it will inform readers with the same worries.

Hi Jim,

I was reading your article online and was wondering if you might be able to point me in the right direction here, or advise on what kind of lawyer I need to find (there are so many different kinds!) …

If a couple has no health insurance and they get into a catastrophic health issue, like a major disease or accident, what happens financially? Would they be forced to liquidate their house and/or retirement accounts, and other savings?

Could someone’s entire wealth be wiped out? Or would there be reasonable payment plans or other recourse?

Who could “force” them to liquidate anyway? If they owed the doctors and hospitals six figures, could they just pay what they can each month? Can the hospital/doctors “force” them to liquidate their life savings? Does that happen often?

Thanks,

Rick

Dear Rick:

You ask a truly great question. To answer your question bluntly: Yes, uninsured folks can be financially devastated by the staggering costs of medical treatments.

The bottom line is that my law partner, who is a bankruptcy lawyer, tells me that approximately 75% of all the bankruptcy cases he handles are because of HUGE uninsured medical expenses.

Contrary to conventional wisdom, these folks filing for bankruptcy are good, hard-working folks who merely had the misfortune of getting sick.

Medical providers, just like any other creditor, can pursue a judgment against you for their unpaid bills and once they get that judgment they can collect by all the typical collection methods – wage garnishment, liens against your home, etc.

I am sorry to be the bearer of such bad news, but your question brings in to sharp focus just how important it is for people to have health insurance.

Thanks,

Jim

Even though our exchange may not have offered the answer my reader hoped for, I was glad to share the response, and I hope it gives him something to work with.

I feel that it is important to share what I have gleaned from 20-plus years as a personal injury and medical malpractice attorney in New York and Pennsylvania, so I encourage readers of this blog to e-mail me with questions. I may not always be able offer good news, but forewarned is forearmed.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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You’re nodding in agreement, I bet. But do you truly realize what that means? Some common standards of business ethics go by the wayside when it comes to insurance companies and claims.

I just read a great blog post, “My First Experience with Adjuster Law‏” by Myrtle Beach trial lawyer David Swanner. He does a fantastic job of describing some of the methods insurance company adusters use to manipulate plaintiff attorneys.

Insurance companies manipulate facts

Swanner writes about the first time he met a Geico “super adjuster” who came to wrap up a bunch of cases all at once. The adjuster didn’t pore over the claimants’ medical records or study their demands. She glanced at the files and came up with one snap reason after another why she didn’t think the cases were valid.

Seeing this happen to five cases in a row, Swanner realized something every personal injury attorney and every accident claimant needs to know: the insurance company will look for any plausible reason to NOT PAY a settlement.

Here are some examples of things adjusters might say about your claim:

• You went to the doctor too quickly. You must be faking an injury.
• You waited too long to see the doctor. You must not have a real injury.
• You’re too young. Your injury will go away.
• You’re too old. Your health problems don’t stem from the accident, but from pre-existing conditions.

It’s kind of like the fairytale about Goldilocks – except insurance adjusters are determined to NEVER declare anything “just right.”

Insurance companies manipulate people

The Ziff Law Firm has a newsletter, “Legal News You Can Use” (sign up to receive your copy here). In the Spring 2008 issue, we featured a story about an insurance company that placed investigators undercover in a church support group to spy on a couple with an accident claim! Unbelievable.

I deal with insurance company BS every day. I know that you have to combat their tactics with the honest facts and the hard work of preparing a strong case. They have adjusters and lawyers on their side – shouldn’t you have an attorney working for your best interests on your side?

Thanks for reading, Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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There’s a tool your doctor or hospital can use that could make your chances of dying after surgery drop by 40 percent. The same tool could even reduce your risk of post-surgery complications by more than 30 percent.

It’s not a fancy laser or high-tech diagnostic machine. It’s a simple checklist! All it requires is your surgical team’s commitment to making sure every item is checked off before, during and after your surgery.

The checklist was the result of a World Health Organization research project. The findings were that 19 simple steps – many of them real no-brainers such as “Confirm the patient’s identity, surgical site and procedure,” or inventorying the instruments after the procedure – significantly improved patients’ chances of a smooth recovery.

Medical malpractice can be the result of oversight, the skipping over of details that are important but may be mundane. The checklist offers a simple solution to a serious problem.

The Jan. 14 edition of the New England Journal of Medicine reported on the research project. Click on the title to read the entire “Elements of a Surgical Safety Checklist.”

Thanks for reading, Jim

_________________________________________

James B. Reed, Esq.

Personal Injury & Malpractice Attorney

Ziff Law Firm, LLP

303 William St., Elmira, NY 14902

Tel. (607) 733-8866 Fax. (607) 732-6062

Toll Free 1-800-943-3529

mailto:jreed@zifflaw.com http://www.zifflaw.com

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The NY Times had a great article today discussing Medicare “Never Events”. These are events that should NEVER occur in a proper medical setting. In other words, if the medical providers are doing what they are supposed to be doing, these events should NEVER, EVER occur. And if they do occur, Medicare is saying that they will no longer pay Dr’s or hospitals for medical bills associated with these “Never” conditions. In other words, if the Dr’s or hospitals screw up and hurt someone, Medicare is saying the Dr’s or hospitals don’t get paid.

Hallelulah! Now that makes sense– instead of the medical providers getting paid more when they screw up, now they get paid nothing when they screw up. I certainly embrace this as a step in the right direction as it will create a huge financial incentive for the medical profession to implement procedures to ensure that “never events”, never occur.

So, what is a Never Event? Here’s the list from the NY Times:

Looking over the list of events that should NEVER occur, I am not surprised to see many of the types of events for which I have handled medical malpractice cases over the last 20 years–

– hospital falls because proper safety precautions were not taken,
– pulmonary embolish after surgery,
–surgical instruments left inside the patient,
–nasty bed sores because a patient wasn’t properly attended to or treated,
–infections, etc.

Although I am not surprised to see these things on the Never list, it makes me wonder why the Dr’s, Hospitals, their insurance companies and defense lawyers, fought me tooth and nail for year after year attempting to claim each and every one of these things could happen even though no one screwed up. Hmmm, I wonder….. I always thought that was a crock of bull and now it’s nice to have Medicare agree and stiff them on their bills.

Thanks for reading,

Jim Reed
NY Medical Malpractice Lawyer
Elmira, NY
jreed@zifflaw.com

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Thanks for watching and I hope this video made your day as much as it made mine!

Now back to fighting with these %#@! insurance companies…

Jim Reed
Injury & Accident Lawyer
jreed@zifflaw.com
Elmira, NY

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In a world seemingly dominated by all-encompassing HIPAA protections (i.e. the dozens of forms you are asked to sign when treated in the hospital) and daunting HIPAA fears (i.e. your boss’s warning that you cannot repeat, recite nor should you even remember information you learn from HIPAA sensitive documents while on the job,) the question inevitably arises: What can I do if I feel my so-called “HIPAA rights” are violated?

Proper analysis of that inquiry requires a basic understanding of Health Insurance Portability and Accountability Act of 1996. (A complete copy of the HIPAA statute can be found at http://aspe.hhs.gov/admnsimp/pl104191.htm.) In general, HIPAA provides privacy protections for individuals by limiting the ways health plans, pharmacies, hospitals and other “covered” entities can use personal medical information.

According to the United States Department of Health and Human Services:

Congress mandated the establishment of federal standards for the privacy of individually identifiable health information. When it comes to personal information that moves across hospitals, doctors’ offices, insurers or third party payers, and State lines, our country has relied on a patchwork of federal and state laws. Under the patchwork of laws existing prior to adoption of HIPAA and the Privacy Rule, personal health information could be distributed—without either notice or authorization—for reasons that had nothing to do with a patient’s medical treatment or health care reimbursement…[t]he Privacy Rule establishes a federal floor of safeguards to protect the confidentiality of medical information. (For more information see http://www.hhs.gov/hipaafaq/about/188.html.)

However, Congress did not create individual privacy rights through its enactment of HIPAA nor did it envision a private remedy in the event of HIPAA violations. In other words, although HIPAA, in effect, fashions or at least codifies what sounds like private privacy rights, it did not carve out a private remedy– or private right of action – for individuals to enforce violations in the absence of action by the Secretary of the U.S. Department of Health and Human Services.

Allow me to explain…

When Congress passes legislation it has the power to decide who will be the bill’s legal enforcers. In order to allow an individual be the enforcer, Congress must, either by express language contained within a particular statute or by implication though its intent, create a private remedy. In the case of HIPAA, several United States’ District Courts have concluded Congress did not create a private remedy. See Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006); Pierre v. County of Broome, 2007 WL 625978 (N.D.N.Y. 2007); Del Plato v. Meyeroff, 2008 WL 398547 (W.D.N.Y. 2008). Instead, Congress empowered the U.S. Department of Health and Human Services to enforce HIPAA violations.

So, what does all this mean to us? Even though it does not appear we have a private cause of action, the government has provided an avenue for us to give notice of potential violations. Specifically, if you believe a person, agency or organization covered under the HIPAA Privacy Rule violated your (or someone else’s) health information privacy rights or committed another violation of the Privacy Rule, you may file a complaint with the Office for Civil Rights (OCR) in one (or more) of the following four ways:

Option 1: Open and print out the Health Information Privacy Complaint Form in PDF format (you will need Adobe Reader software) and fill it out. Return the completed complaint to the appropriate OCR Regional Office by mail or fax.

Option 2: Download the Health Information Privacy Complaint Form in Microsoft Word format to your own computer, fill out and save the form using Microsoft Word. Use the Tab and Shift/Tab on your keyboard to move from field to field in the form. Then, you can either: (a) print the completed form and mail or fax it to the appropriate OCR Regional Office; or (b) email the form to OCR at OCRComplaint@hhs.gov.

Complaints about HIPAA violations in that occurred in New York should be mailed to:

The Office for Civil Rights
U.S. Department of Health & Human Services
26 Federal Plaza – Suite 3313
New York, NY 10278
(212) 264-3313; (212) 264-2355 (TDD)
(212) 264-3039 FAX

Option 3: If you choose not to use the OCR-provided Health Information Privacy Complaint Form (although we recommend that you do), please provide the information specified above and either: (a) send a letter or fax to the appropriate OCR Regional Office; or (b) send an email OCR at OCRComplaint@hhs.gov.

(See http://www.hhs.gov/ocr/privacyhowtofile.htm for more detailed information on how to file a claim.)

Please note HIPAA prohibits an entity accused of violating its provisions from taking any sort of retaliatory action whatsoever against anyone for filing a complaint with the Office for Civil Rights. OCR urges you to notify it immediately if any you experience any retaliatory action.

Thanks for reading, Christina

______________________

Christina M. Bruner, Esq.

Personal Injury & Malpractice Attorney

Ziff, Weiermiller, Hayden & Mustico, LLP

303 William Street, Elmira, New York 14902

Tel: 607.733.8866

Fax: 607.732.6062

Toll Free: 1.800.943.3529

Email: cbruner@zifflaw.com

Web: http://www.zifflaw.com

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My point in my post was that while Wal-Mart’s position was LEGALLY permissible, it was MORALLY bankrupt. I suggested Wal-Mart should do the “right thing” and let this poor lady keep her money. Well, knock me over with a feather because Wal-Mart just announced that they are going to let this lady keep her money after all!

I am shocked (but VERY pleased) that Wal-Mart did the right thing. I suspect that the only reason they did so was the public relations nightmare created by their horrible treatment of this poor lady, but regardless of their reason, at least Debbie Shank’s life will be a little better because she will have the money to get the care she so desperately needs…..

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
NY Accident & Malpractice Attorney
Here’s the CNN story on the Wal-Mart about-face on this issue:

Wal-Mart: Brain-damaged former employee can keep money

• Story Highlights
• Wal-Mart sued Debbie Shank to recoup $470,000 it paid for her medical care
• Shank appealed to the U.S. Supreme Court, but the court would not hear the case
• On Tuesday, Wal-Mart said it is modifying its health care plan

From Randi Kaye
CNN

(CNN) – A former Wal-Mart employee who suffered severe brain damage in a traffic accident won’t have to pay back the company for the cost of her medical care, Wal-Mart told the family Tuesday.

“Occasionally, others help us step back and look at a situation in a different way. This is one of those times,” Wal-Mart Executive Vice President Pat Curran said in a letter. “We have all been moved by Ms. Shank’s extraordinary situation.”

Eight years ago, Debbie Shank was stocking shelves for the retail giant and signed up for Wal-Mart’s health and benefits plan.

After a tractor-trailer slammed into her minivan, the 52-year-old mother of three lost much of her short-term memory and was confined to a wheelchair. She now lives in a nursing home.

She also lost her 18-year-old son, Jeremy, who was killed shortly after arriving in Iraq. When Debbie Shank asks family members how her son is doing and they remind her that he’s dead, she weeps as if hearing the news for the first time.

Wal-Mart’s health care plan lets the retail giant recoup the cost of its expenses if an employee collects damages in a lawsuit. And Wal-Mart set out to do just that after Shank and her husband, Jim, won $1 million after suing the trucking company involved in the wreck. After legal fees, the couple received $417,000.

Wal-Mart sued the Shanks to recoup $470,000 it paid for her medical care. However, a court ruled that the company could only recoup about $275,000 — the amount that was left in a trust fund for her care.

The Shanks appealed to the U.S. Supreme Court, but the court declined in March to hear the case. CNN told the couple’s story last week, prompting thousands of angry blog responses and at least two online petitions to boycott the company.

On Tuesday, Wal-Mart said in a letter to Jim Shank that it is modifying its health care plan to allow “more discretion” in individual cases.Watch Wal-Mart reverse its decision »

“We wanted you to know that Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank’s care, and we will work with you to ensure the remaining amounts in the trust can be used for her ongoing care,” Curran said.

“We are sorry for any additional stress this uncertainty has placed on you and your family.”

Wal-Mart’s reversal came as shock to Shank.

“I thought it was an April Fool’s joke,” he told CNN.

“I (would) just like to let them know that they did the right thing. I just wish it hadn’t taken so long,” Shank said. “But I thank them and I hope they come through with all that they said they’re going to do.

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Source: Wikipedia

In this case, a Wal-Mart employee, Debbie Shank, paid part of her hard-earned salary for health insurance coverage. Debbie was then involved in a horrible car crash suffering permanent brain damage. Her injury lawyers successfully recovered a $1million settlement on her behalf. $417,000 of the settlement was put in a trust fund to pay for Debbie’s future medical care.

This is where things get nasty. Wal-Mart ’s health insurance carrier said that they paid $470,000 in medical bills for Debbie’s care so they wanted EVERY PENNY of Debbie’s trust fund. That’s right, every penny. Leaving Debbie with nothing.

Now remember– Debbie PAID for her health coverage– it wasn’t something that Wal-Mart was kind enough to give to her.

So let’s see if we get this right: Debbie paid for health coverage but now the health carrier wants to be paid back for everything they paid. So, if the carrier gets paid back for everything they paid, what was Debbie paying for? Doesn’t this mean that the insurance company gets a windfall– they collect premiums to pay for coverage and when they actually provide the coverage that they were paid for, they still have the right to be reimbursed? Short answer: Yes.

You are probably asking, How can this be? Simple. The health insurance carrier inserts a clause in your health insurance contract saying that in the event that they pay medical bills on your behalf and that you recover $ from any other source, they have the right to be reimbursed.

This is where the cards are stacked against the little guy. Neither Debbie, nor you, nor me, have the ability to say to the insurance company: “Hey, that’s not fair. Why should I pay you premiums and then you get to be paid back for coverage I already paid for. Take that clause out of my health insurance contract.” We all know how that would go over….. The insurance company has us over a barrel– we either take the contract as it is or they tell us to take a hike.

Sure doesn’t seem fair but it’s perfectly legal. Some brave legislator SHOULD do something about this but unfortunately the insurance lobby is one of the most well-funded lobbies in the country so no legislator is going to be crazy enough to bite the hand that feeds them….

And the worst part here is the heartlessness of corporate giants like Wal-Mart. Do you think that they might have considered doing the RIGHT thing? Do you think that a multi-billion dollar company could have just said: “You know, we have the right to recover this money but you no what, our former employee has been through Hell and really needs this money, so let’s just not seek recovery of this reimbursement.” Could Wal-Mart have done this… just let it go? Yup. But they didn’t….. Heartless is what I call it…..

Thanks for reading, Jim

PS: This is a hot topic on the blogosphere:

• Huffington Post

PSS: Here’s the CNN story:

Brain-damaged woman at center of Wal-Mart suit

JACKSON, Missouri (CNN) — Debbie Shank breaks down in tears every time she’s told that her 18-year-old son, Jeremy, was killed in Iraq.

Debbie Shank, 52, has severe brain damage after a traffic accident in May 2000.

The 52-year-old mother of three attended her son’s funeral, but she continues to ask how he’s doing. When her family reminds her that he’s dead, she weeps as if hearing the news for the first time.

Shank suffered severe brain damage after a traffic accident nearly eight years ago that robbed her of much of her short-term memory and left her in a wheelchair and living in a nursing home.

It was the beginning of a series of battles — both personal and legal — that loomed for Shank and her family. One of their biggest was with Wal-Mart’s health plan.

Eight years ago, Shank was stocking shelves for the retail giant and signed up for Wal-Mart’s health and benefits plan.

Two years after the accident, Shank and her husband, Jim, were awarded about $1 million in a lawsuit against the trucking company involved in the crash. After legal fees were paid, $417,000 was placed in a trust to pay for Debbie Shank’s long-term care.

Wal-Mart had paid out about $470,000 for Shank’s medical expenses and later sued for the same amount. However, the court ruled it can only recoup what is left in the family’s trust.

The Shanks didn’t notice in the fine print of Wal-Mart’s health plan policy that the company has the right to recoup medical expenses if an employee collects damages in a lawsuit.

The family’s attorney, Maurice Graham, said he informed Wal-Mart about the settlement and believed the Shanks would be allowed to keep the money. Watch this couple’s story »

“We assumed after three years, they [Wal-Mart] had made a decision to let Debbie Shank use this money for what it was intended to,” Graham said.

The Shanks lost their suit to Wal-Mart. Last summer, the couple appealed the ruling — but also lost it. One week later, their son was killed in Iraq.

“They are quite within their rights. But I just wonder if they need it that bad,” Jim Shank said.

In 2007, the retail giant reported net sales in the third quarter of $90 billion.

Legal or not, CNN asked Wal-Mart why the company pursued the money.

Wal-Mart spokesman John Simley, who called Debbie Shank’s case “unbelievably sad,” replied in a statement: “Wal-Mart’s plan is bound by very specific rules. … We wish it could be more flexible in Mrs. Shank’s case since her circumstances are clearly extraordinary, but this is done out of fairness to all associates who contribute to, and benefit from, the plan.”

Jim Shank said he believes Wal-Mart should make an exception.

“My idea of a win-win is — you keep the paperwork that says you won and let us keep the money so I can take care of my wife,” he said.

The family’s situation is so dire that last year Jim Shank divorced Debbie, so she could receive more money from Medicaid.

Jim Shank, 54, is recovering from prostate cancer, works two jobs and struggles to pay the bills. He’s afraid he won’t be able to send their youngest son to college and pay for his and Debbie’s care.

“Who needs the money more? A disabled lady in a wheelchair with no future, whatsoever, or does Wal-Mart need $90 billion, plus $200,000?” he asked.

The family’s attorney agrees.

“The recovery that Debbie Shank made was recovery for future lost earnings, for her pain and suffering,” Graham said.

“She’ll never be able to work again. Never have a relationship with her husband or children again. The damage she recovered was for much more than just medical expenses.”

Graham said he believes Wal-Mart should be entitled to only about $100,000. Right now, about $277,000 remains in the trust — far short of the $470,000 Wal-Mart wants back.

Refusing to give up the fight, the Shanks appealed to the U.S. Supreme Court. But just last week, the high court said it would not hear the case.

Graham said the Shanks have exhausted all their resources and there’s nothing more they can do but go on with their lives.

Jim Shank said he’s disappointed with the Supreme Court’s decision not to hear the case — not for the sake of his family — but for those who might face similar circumstances.

For now, he said the family will figure out a way to get by and “do the best we can for Debbie.”

“Luckily, she’s oblivious to everything,” he said. “We don’t tell her
what’s going on because it will just upset her.”

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