While you are Shopping at Walmart this Christmas keep this in mind
JACKSON, Mo. — A collision with a semi-trailer truck seven years ago left 52-year-old Deborah Shank permanently brain-damaged and in a wheelchair. Her husband, Jim, and three sons found a small source of solace: a $700,000 accident settlement from the trucking company involved. After legal fees and other expenses, the remaining $417,000 was put in a special trust. It was to be used for Mrs. Shank’s care.
what a shame, but at least the money is in a trust and will be able to help her for the rest of her life.
Two years ago, the retail giant’s health plan sued the Shanks for the $470,000 it had spent on her medical care. A federal judge ruled last year in Wal-Mart’s favor, backed by an appeals-court decision in August. Now, her family has to rely on Medicaid and Mrs. Shank’s social-security payments to keep up her round-the-clock care.
AWESOME!
The reason is a clause in Wal-Mart’s health plan that Mrs. Shank didn’t notice when she started stocking shelves at a nearby store eight years ago. Like most company health plans, Wal-Mart’s reserves the right to recoup the medical expenses it paid for someone’s treatment if the person also collects damages in an injury suit.
They sure know how to treat their employees!
Let’s be honest though, it is her fault for working there. Her fault she didn’t save enough money, her husbands fault for not having a better job and ultimately her fault for not getting a better education to be working some where else..
I blame the Shanks, not wal mart. What’s a company to do that only has 4 of the richest people in the world on their pay rolls
Words fail.
Its called a ‘subrogation clause’. You have that clause too in pretty much any type of insurance you have (health, auto, homeowners, etc.).
Dis, you are right. And this is something that should be “fixed” in healthcare. The attorneys that made the settlement, and took ~35% of the cash, should have explained this to the family. The settlement should have been made larger to account for the healthcare expenses + future lost earnings, etc.
Alan,
Some states have addressed this issue where personal injury is involved. Legislatures, or progressive courts who acknowledge the unfairness of subrogation in some instances have introduced “made whole” rules where the insurance companies cannot subrogate monetary civil awards unless the insured/injured parties have been ‘made whole’. This is pretty easy to demonstrate when the injury is a broken bone; the insurer pays the hospital for treatment, and the person who caused the injury reimburses the insurer. Where the injury is something continuing, as in the example DV posted, the insured is never ‘made whole’, and should therefore not be subject to subrogation.
Other measures are courts making a distinction between compensatory damages, which can be subrogated against, and special damages such as pain and suffering, or lost wages, which cannot be subrogated against unless the insurer also reimbursed the insured lost wages.
The biggest problem is attorneys and judges who don’t understand how subrogation works or should work and basically fuck the insured by issuing opinions that make no sense. In the medical world, this is called malpractice.
“Other measures are courts making a distinction between compensatory damages, which can be subrogated against, and special damages such as pain and suffering, or lost wages, which cannot be subrogated against unless the insurer also reimbursed the insured lost wages.”
That makes perfect sense. Where were the level heads when this case was decided?
Oh, and Dis, judges and attorneys know everything. Ask them. And if it plays out against their fees, it will be deemed unethical somehow 😉
Hope Matt Denn reads this post.
Use of Walmart case served well as an “attention getter” for the article … but the real issue is not Walmart but the issue of equity and fairness, neither of which appears to have been observed or reached in the case outlined in the article.
I disagree generally with “activist judges” but would applaud if the judicial system reserved judgement on this type cases while it advised or suggested to the legislative system to repair (make whole) the problem.
While I feel for the Shank’s family, I have to wonder why the attorney did not account for the payments made by the health plan. Especially with a case as high dollar as this one.
Wal-Mart’s claim I feel is equitably in the wrong and they should have tried to work out an agreement, however they are looking out for the best interest of their employees as a whole.
When the health plan is self-insured as Wal-mart’s plan is, the money to pay expenses comes directly from the employer and employees. So, you can see why Wal-Mart would want to recover a portion of the $469k+ that was spent in care for Mrs. Shank’s. Otherwise they would need to raise premiums to their employees.
And that brings me back to the attorney. Why didn’t he recover the $1mill policy limits? Had he included the health plans claims, a more equitable arrangement would surely have been met. If I read correctly the settlement to Mrs. Shank’s was for $700k, the other $300k could have made a very nice reimbursement back to the health plan.
As for “made-whole” (a law in some states), most self-insured heath plans are ERISA-qualified which are governed by federal laws not state laws. Which I am pretty sure the retailer giant is (http://www.freeerisa.com).
I do not support Wal-Mart, however I am very familiar with subrogation as it is my job. This tragic outcome could have been prevented had the attorney done his homework.
I do not support Wal-Mart,
Then why do I get the feeling that I just heard from Wal-Mart’s PR office?
You’ve set up a false choice bro. You make it the Shanks vs. other Wal-Mart employees, but it wasn’t the employees who set up the rigged system.
It is the Shanks vs. Jim C Walton worth 15.7 billion, S Robson Walton worth 15.6 billion, and Helen R Walton who has to scrape by on 15.3 billion.
I disagree with Activist Judges.
wait,where’s my broad brush…
.
.
.
ohhhh here it is
thanks for the laugh. I hope you continue to come back
These guys need to learn not to bring that weak shit.
subrogation clause= F^&k you worker clause. If they would allow unions this would not be a problem. I think someone should just go after them for hiring so many illegal aliens. Of course they will find a way to weasel out of any onbligation as long as it keeps their capital intact.
While my heart reaches out to the family, the bottom line is a fiduciary responsibility exists for the plan to recover what’s rightfully and legally due. Subrogation is a great example of “the needs of the many exceed the needs of the few.” In essence, when done properly subrogation is an effective way to contain costs and keep healthcare more affordable for employees and their families. Contrary to popular opinion, WalMart did the right thing and sets a wonderful example for the rest of Corporate America. For any of you that disagree, I encourage you to send a rebuttal. Before doing so, keep in mind that grand larceny kicks in around $2,000.
WalMart did the right thing and sets a wonderful example for the rest of Corporate America.
I can’t tell if this is parody or what.
Anyway, again you are forcing a false choice. The needs of the many…? The top three Walton’s are are sitting on a vast fortune. 45 billion dollars. BILLion. That is so much that they could pay an army of people like you to troll blogs and defend their rapacious greed.
You are not on the Wal-Mart gravy train by any chance?
Brain2,
Then why have so many opinions been written outlining the unfairness of subrogation in personal injury insurance?
And your threat of ‘grand larceny’ indicates you are indeed a schill for Walmart.
Nice mouth, son. First, the woman in the Walmart suit suffers permanent brain damage, then Walmart takes away more money than she received for her injuries, now you want to put her in jail?
Why doesn’t Walmart just put a euthanasia clause in its health insurance? “If you suffer an injury that exceeds workmans’ compensation reimbursement limits, we have the right to kill you.”
Hey! Whaddaya know! Brain2 runs a website designed to limit health insurance benefits to employees!
Santa is not happy with you, Brain.
dis,
that euthenasia line was awesome!
Brian 2,
While my heart reaches out to the family,
had you not started out with that lie, the rest of your bullshit might have been palpable. Your guise that you care for a permanently brain damaged woman started off poorly when said “while”
beat it shill
stick to clubbing seals or something more humane
Brain2 has a website that invites comments. Since he invited us, let’s all give Brain2 our comments! (click on Brain2’s handle, it will take you to his website)
i’d rather not give him the satisfaction of the hits
1. The primary purpose of business is to make money.
2. To that end, business has a responsibility to its shareholders and employees –
3. Business also has a responsibility to be compliant with the law.
4. Most of the responses in this blog trend towards socialism – as pointed out, we do have socialized medicine in this country, such as Medicare and Medicaid. I sense this group doesn’t really like either of those (hmmm, no comment).
5. Unfortunately, lawyers generally write the law.
6. As pointed out, this was a bad settlement for the plaintiff (and also highly unfortunate on many levels).
Let me also point out this case was an extreme outlier and while it is reality for the Shank family, it is hyperbole and is designed to ultimately sell more newspapers. Unfortunately, we have many super wealthy families and institutions in this country, such as Harvard with a $10 Billion + endowment (yet tuition is $50K) and Exxon that generates billions in profits yet people can’t afford to heat their homes, drive to work, etc. That’s simply the way it works.
Quite frankly we do have a healthcare crisis in this country and it’s a shame that it has to come down to this case to illustrate just how broken it is. As of now, the only short term solution is to be compliant with the law. The longer term solution is for the people to be heard through blogs like this and for that voice to make changes for the better. Happy Thanksgiving!
Brain2, you forgot to mention your earlier threat of grand larceny. You “feel” for this poor woman, and her abuse by Walmart is “unfortunate on many levels”, yet you also think she could be subject to criminal penalties for suffering permanent brain damage?
DV: did Brain2 have something to do with the 200 lashes the rape victim received according to you post above?
Was the award she received for health care costs or for a life time of pain and suffering — aren’t these two things usually handled seperately in these types of cases?
There may be another remedy for the victims in this case. Consulting with a good lawyer could result in a malpractice claim against the lawyer who did not act responsibly in settling the claim. That lawyer’s insurance coverage should be more than enough to take care of the amount needed to reimburse the health care fund for Wal-Mart employees.
dis,
his heart goes out for the girl, but if she didn’t have a vagina she wouldn’t have been in this mess
Nosy,
if you actually read the article it may answer the question
NosyNeighbor;
Sometimes, the subrogation ‘attachment’ (reimbursement to the insurance company from the victim’s civil suit) attaches ‘special damages’ unless the court is careful to specify which amount goes for medical care, which amount goes for pain and suffering, which amount goes for lost wages, etc. If the court just says, “We aware a lump sum of money”, then the insurer can sometimes get all of it. This unfortunate outcome is usually the fault of a lousy plaintiff’s attorney, and a judge who doesn’t understand subgrogation.
It seems to me that Walmart should drop their insurance carrier. all this bad press is not what walmart’s image needs. all this bad press over $400,000. it’s worth $400,000 to walmart for them to pay this to help restore their image.
i’m sure walmart has the leverage to to negotiate this clasue out of their employees health plan. when is walmart going to understand that its people are its greatest asset and since they don’t pay worth a crap they should at least look after thier employees well being especially when it doesn’t cost them anything.
stories like this make me choose other stores over walmart when it comes to where to spend my money. i’m not going to support and organization that consisiently takes advantage of those that it can. in my opinion walmart is morally bankrupt.
Sodnap, Walmart is ‘self-insured’, which means they pay a specialist to fuck the employees out of all benefits possible (look at Brain2’s website, pretty much the same thing), while not paying premium for their employees to a regular insurance company.
Its not Walmart’s insurance company screwing this poor woman, its Walmart actually using their own penis to anally violate their own employee.
You’ve got a way with words dude.
Thanks for the explanation Dis. A Happy Thanksgiving to everyone!