WallMart strikes again!

Do you have health insurance? Are you sure they're really insuring you from a huge loss? Maybe, maybe not.

After a collision between her minivan and a tractor-trailer five years ago, Debbie Shank now spends her days in a wheelchair in a nursing home,
able to move only one arm and two fingers. Brain damage and memory loss has drained most meaningful content from her conversations with her
husband of 30 years.

"She'll ask about the boys, she'll ask about the cat," says Jim Shank. "Whenever I'm there, she thinks it must be a mealtime. We don't really
hold a conversation."

Her 17-year-old son is in the Army, which she knows, but he's scheduled for deployment to Iraq next year, which she doesn't know. She also doesn't know that there is a war in Iraq.

To help compensate for the terrible injuries she received in the accident, Shank and her husband sued G.E.M. Trucking and James David
Shivers, the driver who hit her, in U.S. District Court in 2000. According to that lawsuit, Shank suffered damage to her brain stem and other injuries, and was in a coma after Shivers' tractor-trailer struck her near Cape Girardeau, Mo.

The lawsuit was settled for $900,000; after attorneys' fees and other costs, Shank's share was less than half -- just $417,477. The court set
up an irrevocable trust for the money so it could only be used to pay for her long term care, and the money was sent directly there. Her husband
received just over $119,000, presumably for his loss of consortium.

Before the accident, Shank had worked the night shift stocking shelves at a Missouri Wal-Mart so she could spend her days with her sons so she
could be a "better mother". "It's all she ever wanted to be," her husband says. Luckily, she had gotten health insurance through her employer. It
paid for her huge medical bills after the accident.

But because she later got a settlement from her lawsuit, Wal-Mart's health plan administrators demanded she repay the money her health
insurance paid toward her care. To press the case, the retail giant's health plan is suing the Shanks in U.S. District Court in St. Louis. The
lawsuit, filed by the Administrative Committee of the Wal-Mart Stores Inc. Associates' Health and Welfare Plan, claims that her total medical
expenses exceed $469,216, and it demands that amount in return. Plus court costs to get it. Plus interest.

But wait; while Shank's settlement was $900,000, she only actually got $417,477. Shouldn't that be the limit? No, the company says: it wants all $469,216, as spelled out in its policy. So if the company wins, the amount in Shank's trust will not be enough; the family could conceivably have to come up with nearly $52,000 more than what they won in court.

Jim Shank had anticipated and feared just such an outcome. He received a letter two weeks after the accident that, he recalls, said the insurance would not cover his wife's care unless he signed over their right to lawsuit proceeds. Not surprisingly, he signed it so his wife could get the care she desperately needed to survive.

Lawyers familiar with this type of suit says it's not really uncommon. In fact, according to the insurer's lawsuit, the terms are explicit in
Wal-Mart's health plan, which is to be reimbursed first from lawsuit proceeds up to 100 percent of the medical costs.

According to the lawsuit, the health plan also places the burden of attorney's fees and court costs on the employee. So the health plan also
wants the Shanks to pay for the costs the health plan is incurring to sue them.

Maurice Graham, one of the lawyers for Debbie Shank, says only part of the money she received was used to pay medical bills. Since the
settlement money was placed in a trust created by the federal court, he says, it never came into the couple's hands and is supposed to be used
only for her ongoing support.

Marty Hires, a spokesman for Wal-Mart, says filing the lawsuit was just a way for the company to preserve its legal options and that the
health plan has not decided whether to pursue the case.

Regardless, the lawsuit left Shank's lawyer, Graham, incredulous. "I can't believe that they've done this," he said. "The cost to care for her in the future is going to be literally millions. She is confined to a nursing home, has a normal life expectancy, and requires full-time care."

If the insurance company does pursue the case and succeeds, Debbie Shank's already dire circumstances likely would turn even more bleak. Jim Shank says she'd probably lose her caretaker and the wheelchair- accessible van they bought for her. Wal-Mart spokesman Marty Hires said
the company isn't sure whether it will actually pursue the lawsuit now that it's been filed; it was filed before the statute of limitations
expired to "preserve our options," he said. "This is kind of a standard procedure." He refused further comment, citing federal health privacy
laws.

How comforting that must be for Jim Shank to know Wal-Mart is only "preserving its options." He also fears the prediction made years earlier
by a lawyer who specializes in elder care might come true: that if the money runs out, Shank might have to divorce his wife so that she can
become eligible for Medicaid.

Lawyers familiar with insurance law say such measures are not unusual for health plans that, like Wal-Mart's, are self-financed -- that is,
funded by employers and/or employee unions -- to recoup medical expenses. "Wal-Mart has certainly been one of the more aggressive and assertive in
doing this," says Sheldon Weinhaus, a St. Louis lawyer. In his opinion, courts are starting to "recognize the unfairness of this, and they're
looking for reasons to stop Wal-Mart and others from doing this."

On the other side of the coin is attorney Jim Singer, who has faced Weinhaus in court over such issues. He says such lawsuits helps employers
from having to cut benefits or ask workers to contribute more. "You need to put the money back in the trust so it will be available for other
people," he said. But that generally only works for self-financed insurers; in most cases state law prohibits regular insurance companies from attacking such settlements.

But don't make your mind up yet: this is far from a cut and dried issue. The question becomes, was Mrs. Shank's lawsuit settlement in compensation for her past medical bills, or for her future care? It's an important question, since if it was for her medical bills, she shouldn't be able to collect twice -- first from the insurance company, and again from the lawsuit -- for that loss. And if that's the case, Wal-Mart's health insurance subsidiary is well within its rights to recover after it paid out for its client, even when a third party was apparently at fault for her injuries.

Yet it was the court that set up her trust fund -- in an irrevocable trust at that -- for her long-term care. That is a strong indication that the settlement money was for future, not past, expenses. And if so, the insurance company simply needs to swallow its losses, just like regular insurance companies would have to do.

The issue of long-term care for critically injured people -- insured or not -- is a big one that needs to be worked on. Meanwhile, insurance
companies suing their clients who paid their premiums in good faith to protect themselves and their families from catastrophic losses is not a
reasonable solution to the problem, nor is making someone sign away their rights when they're in the most stressful situations possible.

So if you think you're covered, you might want to think again. And think about pulling out your policy and actually reading the fine print to see if you've agreed to let them sue YOU after a catastrophic loss.

SOURCE:
1) "Insurer Wants Woman's Crash Settlement", St. Louis Post-Dispatch, 15
August 2005
Note: This article is no longer online at the newspaper's web site, but several other sites seem to have copies, including here.