Sunday, March 30, 2008


The current non-political outrage of the week involves this poor family whose story sounds like a country song:

Debbie Shank breaks down in tears every time she's told that her 18-year-old son, Jeremy, was killed in Iraq.

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.


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.

And, as you've probably already heard, Wal-Mart is seeking reimbursement for medical expenses incurred on the employee health 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.

"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.

Okay, here's the thing. As awful as this story is, and as heartless as Wal-Mart is coming off (and believe me, we'll get to that), this is simply a case of a trusting family being taken to the cleaners by an incompetent -- if not outright unscrupulous -- lawyer.

Let's see if we have this straight: this assclown took 58.3% of the settlement, and for his services, he assumed that Wal-Mart was just going to good-faith their recoupment of this health-plan clause? And this clause, which is pretty standard stuff, went completely unnoticed? What exactly does it take to get a license to practice law in Mizurrah, a pulse and a stack of self-printed cards?

Seriously, what exactly did this guy do for these people for a 58.3% cut? It looks like he failed to read her health plan clauses and assumed that Wal-Mart was some sort of benevolent creature. A third-grader could have done that for free.

"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."

And all he could get for all that was a million, more than half of which went in his pocket? Again, what is up with this Lionel Hutz crap, and why hasn't Jim Shank gone out and found another attorney to grind it out of his ass? I honestly can't see what this guy did to earn his keep. And I've never heard of a contingency lawyer taking over 40%, and even then only in lawsuits with higher payoffs.

Anyway, it seems pretty clear that Wal-Mart is well within their legal rights, and their duties to their stockholders. But come on, people, what's legal is not always what's ethical:

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."

That's a crock of shit. Plans can be and are contingent upon external factors at times. Simley is really just saying that if they do a favor for the Shanks, they'll have to throw everyone a bone. I don't think that's true; these are obviously extraordinary circumstances, and considering that CEO Lee Scott makes enough to recoup that $470K in a very short week, perhaps Wal-Mart might reconsider its intractable stance.

Or not. I've never gotten the impression that the throngs of Martards have it in them to put their principles where their mouths are, and shop elsewhere. Something shiny will come along within the week, by which time Debbie Shank will have been reminded of her situation another half-dozen times, but be forgotten herself in the shuffle.

[Update: If you want to donate a few bucks to the Shanks, Wal-Mart Watch has set up a fund here. And again, while a write-in campaign might make people feel a bit better temporarily, and might even get Wal-Mart to give the Shanks a much-needed break, if people are truly morally disgusted, stop shopping there. It's better for you anyway; as the Rude Pundit points out, they are fundamentally unpleasant and oppressive in a lot of ways.

The only times I've ever been there is when we had a cat with a propensity for urinary tract infections, and for the last couple years of the cat's life, Wal-Mart was literally the only place in northern CA to carry the Purina UTI food. Since the cat died in 2006, there's been no need, and frankly, trudging through narrow, over-stocked aisles with people who can't afford the cheap shit they're buying is not my idea of a good time. I'd rather pay a little more and buy less stuff locally. I have too much stuff anyway. I think most of us do.

Also, I have been picking on the Shanks' lawyer, Maurice Graham, and Rude Pundit links to an interesting interview with Graham, which fleshes out a great deal of the story. The trucker was probably driving too fast, and Debbie Shank pulled out in front of him (going to yard sales, I read elsewhere), thus the liability was shared, and the trucking company was some podunk outfit that had the bare minimum required insurance, thus the measly payout. Accident reconstruction experts were required to properly assign liability, and no doubt that is recouped in the lawyer's fees, part of that 58.3% cut.

I still question Graham's assumption that Wal-Mart would just let the case go, but he's right in that it's strange how they waited around three years to initiate action. So I'll retract my unkind assertions about Graham earning his keep. It looks like he did what he could with a pretty bad hand to begin with. And it sucks that at the end of a series of incredibly horrible occurrences, the Shanks are basically at the mercy of Wal-Mart deigning to lift their corporate thumb. It might be interesting to see how this sort of situation is dealt with in a universal health care system, and how the costs would be subsumed in such a system (for example, the Shanks had to buy a wheelchair-accessible house). Just a sad story all the way around.]


Grace Nearing said...

"Luckily, she's oblivious to everything...."

That's about the greatest mercy in America today.

It shouldn't be that hard to get 470,000 Wal-Mart shoppers to spend $1 less a week at Wal-Mart in protest, until Wal-Mart relents. Why don't the consumer-citizens of America ever do this?

Heywood J. said...

Yeah, but they have to keep tuning her back in, over and over, literally every day. How she got there, what happened to her son. That's torture. But it would be nice sometimes to be able to tune out all the white noise of American life. Half the things we know, we wish we didn't.

I'm sure Wal-Mart will come to their senses pretty quickly and find a way to magnanimously drop their claim. The bad PR will offset that $470K pretty quickly, if it hasn't already.

Someone should check the Shanks' lawyer out, while they're at it. He should have caught all this at the very beginning, especially for the percentage he charged.

I don't know anything about law or insurance, and even I know about recoupment subrogation clauses in health and insurance plans. They're standard, and Graham should have known about it, instead of "assuming" that Wal-Mart was just going to let it go. I don't think the Shanks paid him $583K to "assume".

Spaz said...

I have heard this blame the laywer crap everywhere now. Who is responsible for this deflection of blame? The lawyer had no reason at all to believe that there was a corporation so evil as to take money from a dead war vets, vegtable mom. What person (lawyer) would ever think that? NOONE. I called my mom to talk about this and the first thing she did was blame the lawyer. The families lawer did not sue the Shank's WALMARTS LAWYER DID!!!!!!!!!! WALMART IS PURE EVIL!!!!!

Heywood J. said...

Spaz, at the risk of stating the obvious, the lawyer is being paid (in this case, extremely well) to protect the interests of his clients (the Shanks). Part of that protection is to catch the obvious stuff before it happens, and to assume the worst of their adversaries.

In this case it is that the entity funding the health plan (Wal-Mart) has a standard subrogation clause in the contract asserting their right to recoup settlement money against health claim payouts.

It's called "double-dipping" when you claim a settlement which is partially itemized for medical care and have your insurance plan pay for the same care. Settlements aren't just "here's a million bucks; have a nice day", it is apportioned against specifics such as loss of future earnings, cost of medical care and therapy, etc.

For example, if your car is totaled is a wreck where you receive a settlement, and part of that settlement is allocated to replace your car, your auto insurance company will recoup any money they had to pay out when they totaled your car.

I agree that Wal-Mart is being amoral in this instance, but the fact is that it was entirely foreseeable, and that was the lawyer's only job, to be aware of such instances.

I'm the last person to stick up for insurance companies and predatory corporations, but they told the Shanks exactly what they were going to do in the contract. Caveat emptor and all.