Source: WikipediaThis recent CNN story (also pasted below), illustrates two problems I deal with on a daily basis in representing my injured clients: 1) Giant corporations are heartless. 2) ALL the cards are stacked against the little guy.
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:
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.”
If Ms. Shank had recovered nothing, than Wal-Mart would not be recovering anything. And to the extent that Ms. Shank in her award/settlement was given money for past medical expenses, were she to keep that, isn’t that a case of a double recovery if Wal-Mart does not recover that from her.
My question, when I have read about this case, is why the recovery is so small in light of her injuries?
It appears to me that the her lawyer got $500,000 ["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."] and no one seems to mind that.
“The family’s attorney, Maurice Graham, said he informed Wal-Mart about the settlement” [Was it a settlement or an "award" as mentioned earlier in the article] “and believed the Shanks would be allowed to keep the money.” [Why does he think that - see next] “We assumed” [Always a big mistake] “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.” [Shouldn't he have checked that out first before agreeing to the award/settlement?]
Yes this is a sad case, but sad cases make bad law but good press. What should be discussed in these stories is that maybe Wal-Mart should be sharing in the cost [Paying some of the attorney's fee] of obtaining the fund that was made available for them to assert a lien upon. That would be a better argument and would not make bad law.
Mr. Schepp:
Unfortunately I do not have enough information to determine why Ms. Shank “only” got $1,000,000. My best guess would be that $1,000,000 probably represents the full insurance policy limits for the truck that injured Ms. Shank. Many times cases are worth MUCH more but the old adage “you can’t get blood from a stone” applies– in other words, you can only recover up to the amount of the insurance coverage. Sadly, in NY, the law only requires drivers to carry $25,000 in liability limits so even if that driver causes a $10,000,000 injury, the most you can recover from that driver is $25,000 unless that driver happens to be independently wealth (NOT likely for someone driving around with minimum coverage).
As to the amount of $ that Ms. Shank’s attorney received, it is also impossible to know that amount without knowing more information. Most injury cases are done on a 1/3rd contingency fee basis meaning the attorney gets 1/3rd of the amount recovered after the costs of the lawsuit are deducted off the top (that’s how it works in NY). We have no way of knowing what the costs of the lawsuit were from the information provided.
As always, your comments are appreciated even if we do not necessarily agree with one another….
Jim Reed
NY & PA Injury & Malpractice Lawyer
jreed@zifflaw.com
Mr. Schepp – you raise interesting points, but let me try to explain the unfairness a little differently. It is likely safe to assume that there was only one million in coverage for this poor woman’s damages. It is also clear that her damages greatly exceed the coverage. This is the rare case that could support a verdict in the five, six, or seven million dollar range or more. If this poor woman actually recovered that amount, if every last dime of her past and future medical expenses, every penny of her pain and suffering were paid for there is no question that Wal-Mart would be reimbursed for the medical care it paid for. To do otherwise would result in a double recovery for the Plaintiff. What happened here, though, is different. Plaintiff was only able to collect one million dollars. Let’s conservatively estimate that as 20% of the value of her case. Reasonable people might argue that since the Plaintiff only collected 20% of her damages, Wal-Mart should only be reimbursed 20% of the benefits it paid out. There is case law in New York supporting this approach. In this case, though, greedy, multi-billion dollar Wal-Mart wants to recoupe 100% of the benefits it paid out even though Plaintiff only recovered 20% of her damages. Its this kind of over reaching that gets people up in arms and gives the heartless corporation the black eye they most often richly deserve.
Your comment about Wal-Mart reducing its request in recognition of the Plaintiff’s attorney’s efforts in achieving the award is a valid one. Lienholders in personal injury cases are very often amenable to reducing their lien in recognition of the efforts and expense Plaintiff’s counsel endured in prosecuting the case. Wal-Mart, the greedy, multi-billion dollar corporation that it is, couldn’t see the merit in this idea. Can’t say that I am surprised.