Debbie Shank stocked shelves at a Wal-Mart store in Cape Girardeau, Mo., until five years ago, when her minivan was hit by a tractor-trailer. Her Wal-Mart health insurance paid the medical bills. Proceeds from a lawsuit helped finance her care in a nursing home.
Brain damage forces her to use a wheelchair and limits her upper body movement to one arm and two fingers. It stole her memory and her ability to talk to her husband and three sons.
"She'll ask about the boys, she'll ask about the cat," said her husband, Jim Shank. "Whenever I'm there, she thinks it must be a mealtime. We don't really hold a conversation."
Now the Shanks face a new obstacle. Her Wal-Mart health insurance plan wants the lawsuit money to repay its costs. Advertisement
Last week, the health plan sued Debbie Shank in federal court in St. Louis, demanding the full $417,000 she got in the civil suit - plus at least $51,000 more from the share that already went to lawyers and costs.
A suit such as this is not uncommon, and is a way for self-financed health plans - employer and union-funded plans - to recoup medical expenses, say lawyers who handle health and insurance law.
A Wal-Mart spokesman said the health plan has made no decision on whether to pursue this case; the suit puts a legal foot in the door before the deadline to file it passes. "This is kind of a standard procedure, and it just preserves our options," Marty Hires said.
It has the potential to hit Debbie Shank, 50, particularly hard.
"I can't believe that they've done this," said Maurice Graham, one of her lawyers.
"The cost to care for her in the future is going to be literally millions," Graham said. "She is confined to a nursing home, has a normal life expectancy and requires full-time care."
Shank and her husband sued G.E.M. Transportation Inc. and Texas truck driver James David Shivers in federal court in September 2000 after Shank was hit by the tractor-trailer while making a U-turn on Highway 177 near Cape Girardeau, according to the original lawsuit.
Shank suffered injuries to her brain stem and other body parts and was in a coma after the accident, the suit says.
The Shanks settled in August 2002 for $900,000. After attorneys' fees and expenses, an irrevocable trust set up for Debbie Shank got $417,477 and her husband got $119,280, according to court documents.
Jim Shank, 52, who does maintenance and risk management work at Southeast Missouri State University and also is a real estate agent, is not named in the health plan's lawsuit.
Lawyers familiar with employment law said that while state law generally bars a health insurance company from trying to get a piece of a settlement, self-funded health plans are allowed under federal law to recover their costs.
In this case, Shank's total medical expenses exceed $469,216, the suit says.
Wal-Mart's health plan explicitly states that it gets reimbursed first out of any settlement or judgment, up to 100 percent of the total amount of the medical expenses, according to the lawsuit filed by the Administrative Committee of the Wal-Mart Stores Inc. Associates' Health and Welfare Plan. The plan also explicitly states that, "All attorney's fees and court costs are the responsibility of the participant, not the plan," the suit says.
For Shank, that would mean coming up with at least $51,000 more than she received.
The suit also seeks attorneys' fees, costs and interest for the expense of suing Shank to recover the money.
Graham said the settlement money was placed in a trust created by the federal court, "so this money never came into the hands of Debbie Shank or her husband ... and is only to be used for her support."
Only a portion of the settlement was for medical bills, Graham said.
The health plan's suit says it was never notified of the settlement or the creation of the trust, and Shank and her lawyers were repeatedly told that the health plan expected "100 percent repayment."
An attorney for the plan, Christopher Hedican, said he was "not authorized" to talk about the case.
Wal-Mart spokesman Hires would not comment further, citing federal health privacy law and the lack of a final decision about whether to pursue the case.
St. Louis lawyer Sheldon Weinhaus, who has handled similar suits, said it is not unusual for employer-sponsored health plans to try to recover money from lawsuits.
"Wal-Mart has certainly been one of the more aggressive and assertive in doing this," he added.
He said courts are becoming more critical of suits filed by health plans. "They recognize the unfairness of this, and they're looking for reasons to stop Wal-Mart and others from doing this ... in my opinion," he said.
Jim Singer, who battled Weinhaus on a case involving a union-funded health plan, disagreed about a change of attitudes in the court system. "I don't know that that's true. I haven't seen that."
Singer said that using lawsuits prevents cuts in benefits or increases in worker contributions to the plan. "You need to put the money back in the trust so it will be available for other people," he said.
Jim Shank said his wife bounced from job to job until she found the night shift stocking shelves at Wal-Mart, which allowed her to be home for her sons during the day - to be a better mother, he said.
"It's all she ever wanted to be," he said.
Now, although she knows her middle son is in the Army, she doesn't know that the 17-year-old is scheduled to head to Iraq next year, or even that there is a war.
Jim Shank has dreaded something like this since he got a letter two weeks after the accident, while his wife was still in intensive care, "clinging to life."
He recalls the letter saying he had to sign over any right to lawsuit proceeds or the health plan would not pay for his wife's care.
He said that if the Wal-Mart health plan pursues the case, and wins, his wife would likely lose the caretaker who "stays with her and works with her and helps her and tries to keep her in good spirits," he said. And they might have to sell the van they bought to accommodate her wheelchair.
He also said that a lawyer who specializes in elder law said several years ago that if the money runs out, he might have to divorce his wife to make her eligible for Medicaid.