Occasionally I stumble onto something that really sets me off and I want to write about it, but then I find out that it is old news, pretty much irrelevant with the passage of time so I let it pass. This is an exception to the case. While this story began more than eight years ago, the dust is just now beginning to settle, but settled or not, it still has the capacity to raise the blood pressure to dangerous levels. Besides that, it’s about everybody’s favorite evil corporation, Wal-Mart, and I personally believe that no matter how many times Wal-Mart gets kicked in the teeth, it just isn’t enough.
This tragedy began in 1999 ago when Deborah Shank took a job stocking shelves at the Wal-Mart store in Cape Girardeau, Missouri. As soon as she was able she moved to the 11 p.m. to 6 a.m. shift so she could spend more time with her three sons, and when she completed the company’s new employee probationary requirement in February 2000, she applied for and received benefits under the Wal-Mart health plan.
Approximately three months after she became covered under the Wal-Mart employees health care plan, Deborah Shank and a girlfriend were using Deborah’s minivan to drive from one garage sale to another when a semi-trailer truck plowed into the driver’s side of her automobile. Deborah’s friend escaped with minor injuries, but Mrs. Shank suffered severe brain trauma as a result of the accident and spent several weeks in intensive care as she drifted in and out of a coma. Despite one of her doctors giving her almost no chance for survival, Deborah Shank lived. A year after rotating in and out of the hospital and rehabilitation programs Mrs. Shank could no longer use her right arm or three fingers on her left hand because of neurological damage. She couldn’t feed or dress herself and conversations with her family were limited to all but simple questions. She was severely and permanently brain damaged, she has practically no short term memory, she will be confined to a wheelchair for the remainder of her life. Deborah Shank’s health care needs became so great that her husband was forced to move her into a nursing home where she can be continuously monitored and receive the constant medical care she needs to exist.
Lawsuits were filed against G.E.M. Transportation Inc., which owned the truck that struck Deborah Shank’s minivan. Mr. Shank, a maintenance worker at Southeast Missouri State University, received a $200,000 settlement, of which $81,000 went to legal fees. Mr. Shank used the money to purchase a one story house with wheelchair ramps and wider doors to accommodate his wife’s situation in the event she eventually returns home. In addition to Mr. Shank’s settlement, Deborah Shank received a settlement from the trucking company for $700,000. After the lawyer skimmed $282,523 off the top, Mrs. Shank was left with $417,477 which the court placed in a special trust designed specifically to finance her future health care needs.
Nearly three years after the Shanks received the settlement from the trucking company Wal-Mart filed a lawsuit against them to recover the $470,000 they had spent on Deborah Shank’s medical care. Like many company subsidized health care plans, the Wal-Mart employee medical plan contains a provision that allows them to recover the cost of medical expenses paid out if the employee collects damages from a personal injury lawsuit related to the injuries suffered. In the terminology of insurance companies this practice is called “subrogation,” and it shouldn’t be that big of a surprise to discover that subrogation clauses can be found in the fine print of most employer’s health care plans. Despite the existence of these provisions in their health care plans, most companies wouldn’t touch something like this with a ten foot pole. Many company plans have adopted the routine policy of having a claimant sign a reimbursement form prior to paying claims or allowing any settlement discussions to proceed, but even in these cases most companies would shy away from any attempt to snatch a trust fund established by the courts for the long term care of an seriously injured and permanently brain damaged employee. Admittedly, corporations are all about the bottom line and profit may be the only God in their universe, but most corporations are also well aware of the role that public perception plays in their continued profitability and they budget huge amounts of money annually to carefully construct and maintain their corporate image through internal and external public relations efforts. While most corporations would be sorely tempted to jump at the chance to save a few million dollars on their health insurance expenses, sacrificing the hard work and expense of building a good corporate image by dumping all over a seriously disabled employee would be unthinkable. Wal-Mart is, however, not quite like most corporations. They had no qualms about leaping on the brain-damaged woman with both feet and demanding the money.
In August 2005, Wal-Mart hit Deborah and Jim Shank with a lawsuit demanding repayment for $469,216 in medical costs out of their settlement. The lawsuit also demanded that the Shanks pay all of Wal-Mart’s legal fees associated with the lawsuit as well as any accrued interest the overall sum might have earned for the corporation. The family’s attorney, Maurice Graham, contacted Wal-Mart about the possibility of negotiating a compromise and was bluntly advised that the corporation intended to proceed with the lawsuit. Neither he nor the Shanks contested the fact that Wal-Mart was entitled to some compensation from the settlement. Their argument is that the settlement money they received was far less than what would be considered full compensation for the injuries suffered by Mrs. Shank. The Shank’s attorney argued that the settlement money was for more than the injuries Mrs. Shank suffered; it was also to cover the pain she has, and will continue to suffer. It was to cover the losses she suffered as a direct result of the accident. She will never work again, she will never be able return to her former life, she will never be able to have the relationship she had with her husband and children. The family’s attorney didn’t deny that Wal-Mart had a right to some compensation, but he did contend that the amount of Wal-Mart’s compensation should be determined in an equitable manner that would allow Deborah Shank to continue getting the care that she needed. Wal-Mart’s representatives admitted that the case was sad, but under the provisions of their health care agreement, they had the right to be compensated for Mrs. Shank’s medical expenses, which they had paid. Furthermore, they had an obligation to control health plan costs and considered their course of action as the fair thing to do with respect to the other participants in the plan. If that meant Wal-Mart had to seize every penny of the settlement money and leave a destitute Deborah Shank sitting on a street corner in her wheelchair then that was exactly what they intended to do.
In August 2006, U.S. district judge Lewis Blanton sided with Wal-Mart, ruling that when Mrs. Shank signed on to Wal-Mart’s health plan she was obligated to abide by its terms. Six days after the judge released his decision, Deborah and Jim Shank were notified that their 18-year-old son, Jeremy, was killed while serving with the 25th Infantry Division in Iraq. Despite their pain, the Shanks had no choice but to file an appeal before a three-judge panel in the 8th Circuit Court. They lost that appeal and were denied a request for a hearing before the entire court. By this time there was only $277,000 left in the trust fund set aside for Mrs. Shank’s future health care. Jim Shank had used some of the money to hire a private aide to care for his wife while she remained in the nursing home. He had accumulated more than $130,000 in bills for Mrs. Shank’s continuing rehabilitation and a return hospital visit after her health insurance coverage expired. Jim Shank was forced to divorce his wife Deborah so that she would become eligible for the Medicare and Medicaid coverage that would enable her to remain in the nursing home and get the care she needed. He was working two jobs and struggling to recover from prostate cancer. Refusing to give up the fight, the Shanks appealed to the U.S. Supreme Court, but last week, the high court refused to hear the case. Deborah and Jim Shank have now exhausted all their resources and there is no place for them to turn. They are beaten; Wal-Mart has been declared the unquestionable victor in this case. Wal-Mart beat Deborah and Jim Shank and their attorney from one end of the court system to the other. Deborah and Jim Shank have nothing left, they are broke and so far in debt that they will never recover, they have lost their son, their family has been destroyed, their dreams crushed, their hopes destroyed.
It is an irrefutable fact that the mighty Wal-Mart effectively put Deborah and Jim Shank in their proper place, and if the story ended here it would be bad enough, but it doesn’t end just yet because on April 1, 2008, Jim Shank received a letter from Wal-Mart Executive Vice President Pat Curran stating that Wal-Mart, the monolithic retail giant that reported $90 billion dollars in net sales in the third quarter of 2007, had benevolently decided to allow the thoroughly beaten and dispirited Shanks to keep the paltry remains of the trust fund set aside for Deborah’s ongoing care. After three years of non-stop legal pummeling, unimaginable emotional suffering and the intentional infliction of extreme stress resulting in Wal-Mart’s smug victory, the company comes back and tells the effectively crushed and devastated couple that they can keep whatever few dollars they have remaining in the trust fund.
What does this say about Wal-Mart? Does it mean that the corporation saw the error of their evil ways and decided to do the right thing, or is it that the retail giant never really needed the meager sum set aside for Mrs. Shank’s medical care but couldn’t resist the joyful urge to crush everything the woman ever held dear to her life before letting her off the hook? Before leaping up in celebration of Wal-Mart’s benevolent gesture, it should be remembered that Deborah Shank’s life has been destroyed. She will remain in nursing home, wheelchair bound, brain damaged and welfare dependent until she is no more. She has lost everything she loved, everything that gave her life meaning and purpose has been methodically stripped away from her in the process of Wal-Mart’s legal victory. Wal-Mart sucks up more money in one tenth of a second than Deborah and Jim Shank will have in their entire lifetime, including all of their past combined earnings and both of the settlements they received.
Was this really about the saving the money or treating all paticipants of their health care plan fairly, or was it about an incredible big and incredibly powerful corporation’s overpowering desire to crush the life out of a small opponent they viewed as being essentially meaningless? I am too biased to be the impartial judge of that question.
As a final side note; I think it is extremely interesting that over the course of many years I have observed that the vast majority of Wal-Mart customers appear to be registered Democrats. This fact seems to be acknowledged by the professional signature gatherers who frequent the parking lots of Wal-Mart stores while soliciting signatures in support of whatever liberal proposition the local Democrats happen to be pushing. This doesn’t have anything at all to do with the content of the posting above, but I find it intriguing nonetheless.
Technorati Tags
Wal-Mart
digg this | del.icio.us