Its not that she won a suit, I dont think that Walmart/insurance could recoup that, but she sued for and received "medical expenses".

Its called subrogation, and its common with insurance carriers. See here: [en.wikipedia.org]

I think that's fair. If she received money from the trucking co for medical expenses, she shouldnt be receiving money from anyone else for the same medical expenses.

"While, on the face of it, reptilian, standard employer-sponsored-insurance contracts have clauses prohibiting double-dipping"

Of course, uh "mammalian", specialty, independently created insurance contracts have clauses prohibiting double-dipping, too. I can't imagine there's an insurer out there that would be cool with you collecting your insurance payout and also having your medical expenses covered in a lawsuit judgment.

Furthering Steve's comment above, it's not even that she received medical expenses but that she didn't want to repay the money her insurance paid out.

Its a common thing - called subrogation. All insurance companies do it. See here: [en.wikipedia.org]

I have 2 issues with this.

1. SHE IS NOT BRAIN DEAD, RTFA
2. SHE sued and won to cover her medical expenses while BILLING WALMART for those same expenses...

This is an emotional story in which we all want to give someone like this comfort and peace. However, this injury does not entitle her to collect twice.

Just because something is "common" doesn't make it ethical or moral.

I think it might be fair, but maybe Wal-Mart should pay her legal expenses, since they totally took advantage of her winning the other case. Maybe she could file bankruptcy?

Meanwhile, this family is about to be bankrupted by Wal-Mart's legal policies. The company does $400 billion of revenue a year - does it really have to be so vindictive? Improved employee health care options? What?

It doesn't make much sense. Walmart paid 100% of her medical bills, so why did she sue the trucking company?

In the end, she's $50k out of pocket because the lawsuit didn't give her as much as walmart had spent. dumb.

Eh, I'm with the commenters above me. No sympathy from me.

@Hank Scorpio-Steinbrenner:
How is this immoral or unethical? Another party was found liable for those expenses. WalMart wants the other company to pay for those expenses.

If I get hit by a car and my insurance company pays for my medical bills, and then I sue the driver of the car and he is ordered to pay for the bills, should I somehow get that money?

Ditto. She sued for medical expenses. Walmart shouldn't have to pay as well.

@UX4themasses: Not only RTFA, R your own FA!

Yeah, why did she sue the trucking company for medical expenses if Wal-Mart already paid them? I'm thinking that the jury who awarded her that $$ meant it for 'future medical expenses' because, let's face it, someone in her condition will require more $$ for future medical needs. So basically, if you get hurt and sue a company, the moral of the story here is to sue for anything/everything OTHER than medical expenses if your insurance company already paid them or to at least make it very specific that you're suing for FUTURE medical expenses. Where the hell was HER lawyer's brain in all of this? Anyway, I still hate Hell-Mart even despite this.

She needs to sue her attorney for malpractice. He should have known better than to agree to the settlement she got; and someone should have read the contract with the health plan. Admittedly, I never read mine.

Does RTFA mean read the eff'ing article? Or, something else? I'm trying to figure that out...

@lookoutscout:
The thing is, if WalMart was nice and let it go, then someone else would jump on it saying 'you allowed it for this case, you must allow it for all'.

Sometimes, it's more than just the basic money, but the repercussions it could have on future claims.

@Hank Scorpio-Steinbrenner: You know I like you Hank, but you are wrong, she was the unethical one. She sued the trucking company for a bill that she didnt have. She actually could have been accused of committing fraud on the court. If Walmart hadnt recouped that money she may have seen the lawsuit overturned on appeal. Besides, we both know that any loss wouldnt have come out of Walmarts bottom line, but rather as an increase in the cost of the Walmart insurance plans.

My mother was in a severe car accident a few years ago and almost ended up in a similar situation. Her medical expenses were paid up front by an insurance company and she then won a settlement.

Fortunately, her lawyer had half a brain and sued for present and future lost wages and secondary medical expenses. When the insurance company came sniffing for cash, they had no basis since the damages weren't for the medical expenses that had already been paid.

In all honesty, I think that the family deserves the money and probably a bit more. She has a severely diminished quality of life and no source of income as a result of this. Unfortunately, they probably hired some sham TV commercial lawyer and got screwed as a result.

@Hank Scorpio-Steinbrenner: so it's ethical to get paid for the same thing twice? or get repaid for medical bills that you didn't pay?
Awesome, I gotta go get me some money!!

Actually, thinking more about it, sounds like she was conned by an ambulance chaser.

She was awarded $700,000. The attorney took 40%. That's an obscene amount. I can open the phone book and randomly point to a dozen injury lawyers that will take 15%.

@cybercjh: I don't know but whoever said it is right... lady is brain-damaged not brain dead. Still not good but there is quite a difference.

@Hanke:

I was involved in a suit similar to this and my attorney got the decision overturned due to his own mistake. He didn't have a problem with filing the appeal and the decision was overturned. I ended up getting a fair settlement in the end, tho it did take a while to sort it all out.

It's fair. I know it looks assholeish because the woman is brain damaged but that's not how it works.

She shouldn't be able to collect benefits twice - nobody should. This is only fair, I had a similar situation recently where I had to repay one government agency from funds I received from another - it'd be nice to have more money, but I wasn't entitled to it, and neither is she.

Yes, Wal-Mart has every legal right to subrogate. But, Wal-Mart sued for $470,000 (for medical expenses, plus interest and legal fees), which even exceeds the amount of the settlement Debbie Shank received after legal expenses (around $417,000). The settlement money was placed in a trust for Debbie's FUTURE medical care because this poor woman will require 24-hour medical care in a nursing home for the remainder of her life. Now, the family will be forced to fully rely on public assistance to pay for Debbie's medical care. This case is a tragedy for Debbie Shank and her family, not a case of double-dipping.

@digitalhen: Ok...I did read the EFFN article in which she SUED for medical expenses from the trucking company while collecting insurance from WALMART's insurance...

Someone needs to smack her attorney upside the head. Looking at potential subrogation should always be part of negotiating a settlement.

I hate to harp on the national health insurance thing but if the care portion was already handled and then the national health plan went after the liable party she wouldn't be in the situation she is. The dispute would have only been for damages & lost wages.

@Hanke: The attorney (but failed) tried to game the system by putting the settlement proceeds in a trust:

The Shanks' lawyer, Maurice Graham, wrote the Wal-Mart health plan informing them [of the settlement and trust]. Mrs. Shank had received no funds directly, he said, and therefore had nothing to pay Wal-Mart back. [online.wsj.com]

I give him a bronze star for effort.

It's sad that this lady's settlement was completely eaten up by her past medical bills. It sounds as if her case was worth far more than the amount she received. Hopefully, Walmart won't ask for the extra $50,000.

@woogychuck: "In all honesty, I think that the family deserves the money and probably a bit more. She has a severely diminished quality of life and no source of income as a result of this. Unfortunately, they probably hired some sham TV commercial lawyer and got screwed as a result."

so walmart should have to pay for that? yeah, right.

i'm not a fan of walmart, but i am also not a fan of people trying to double-dip... and less of third-parties who try to justify their actions. in the end, it seems like everyone got their fair shake... trucking company was held responsible.

@Steve Trachsel, Ace. No, really, ACE:
"[S]he actually could have been accused of committing fraud upon the court."

Actually, that's not true. In the absence of some kind of contractual agreement otherwise (and yes, there usually is such an agreement), an injured person is legally entitled to sue a tortfeasor even if he or she has already been paid by an insurance carrier.

But, as I said, all insurance contracts provide for subrogation. Basically, upon payment of the claim, the insurance company inherits the right to sue the tortfeasor and keep the proceeds, to recoup costs paid to the insured.

Two points: (a) I don't understand what the woman's lawyer was thinking. It's too simple. (b) As a matter of policy, I *don't* think it's obvious that the insurance company should have a right of subrogation. After all, an insurance company makes its profits by charging premiums that, collectively, exceed the risk-adjusted aggregate injuries for policyholders. When an insurance company profits from all those premiums, and then recovers all of the money it paid to the insured -- the company is "double dipping" too!

attorney screw up? he should've listed the settlement amount as something other than medical costs. maybe long-term secondary health costs or something. is walmart covering her lifelong care then in response to taking the money she needed? if this is for medical expenses that walmart has not or will not be covering related to this accident then this is a supreme failure of the court system.

It's not like Wal Mart is at fault here. The trucking company is responsible for her injuries and her health insurance through WallieMart paid for said medical expenses.

However, I would suggest that Wal Mart's health care plan is only entitled to 60% of the damages ($417K divided by the original $700K settlement). There's no reason that they should take whatever is left over after the initial attorney fees from the case against the trucking company. I might also suggest that suing this family for settlement plus attorney fees was pretty shitty.

I would also encourage the Shanks family to hit every media outlet that will listen to them and tell their story. In the end, they would have been better off not having the health insurance and just suing Wal Mart and the trucking company for damages.

They should simply make it so that insurance companies can only subrogate money paid for actual medical damages that the insurer paid for. They shouldn't be allowed to subrogate anything like punitive damages, money for pain and suffering, future lost wages, etc.

Just because shes brain damaged doesnt mean she can go around suing everyone for the same medical expenses. Thats what you get for trying to get double payed.

I guess my thought is that, if she is brain-damaged... then doesn't that mean that someone else is in charge of her expenses and accounts? Wouldn't this mean that she personally did not double dip, but her husband or parents or children did? It seems to me that this incident is being used by the family for financial gain, which is being greedy, and they got caught.

The Walmart vs. Shanks case is incredibly sad but I understand the legal reasons why Walmart must try to recoup the money. Still, the PR ramifications are going to be pretty severe for WalMart since most people think they're behavior towards employees is reprehensible already.

The only win-win here would be for Walmart take back their money but then make a large (2x the settlement or more) donation to the Debbie Shanks funds.

Oh wait, I forgot: The plan was administered by a company now owned by UnitedHealth Group, who filed the lawsuit. Their actions are therefore unconscionable.

I mean seriously, courts side with contracts now, like they're some sort of legal document? They should at least consider that one party is evil (or so I'm told), and therefore deserves to be screwed.

@johnva: They dont, as far as I know. The reason Walmart went after her is simple. By her winning a suit for the medical expenses they paid the insurance company now cant sue the trucking company.

Also, she had no cause against Walmart, they werent responsible in any way for her injuries.

I am surprised that they didnt sue for additional damages and continuing care cost.

Actually, better yet, why not just outlaw subrogation but prohibit people from suing for any medical bills that were already paid for by their insurer? Then the insurer could sue separately to recover their costs, and the insured could sue for punitive damages, pain and suffering, lost wages, etc and any out-of-pocket medical expenses incurred. As it is, it looks like if I have 90/10 health insurance (for example) that the insurer gets their money from a settlement before me, which makes no sense to me since I would be the one injured.

Alternatively, if they're going to allow subrogation they could at least make the dollars from the settlement be split 50/50 between the insurer and insured up until the point where one of them has their losses totally satisfied. Then the rest would go to whomever lost more. I don't think it's fair for one party to get ALL the money when BOTH incurred losses.

@Steve Trachsel, Ace. No, really, ACE: That makes sense. So the real problem was that her attorney was an idiot and didn't sue for actual things she could keep the money for. Did she also sign away her right to sue them again for pain and suffering, etc?

@MonkeyMonk: "Wal-Mart sues worker just for the sport of it: company just wanted to prove a point" ?

They didn't sue to prove a point. They sued for the monies to which they were reasonably entitled. Who puts all that effort into a long, drawn-out lawsuit and then gives it all back with interest?

@modenastradale:

a tortfeasor

I am going to start using "tortfeasor" as a common insult. What a great word!

@ThomFabian: Because if you read the other story this is an update on you'll see that Wal-Mart is taking all the family's settlement money. This woman will have on going care issues for life, plus the family has lost a wage earner; this family needs that money. Wal-Mart's financial success doesn't hinge upon that money like this family's does.

No it may not be fair to expect Wal-Mart to just pick up the tab, but it's also not fair to leave this family destitute. Lesser harm is done to Wal-Mart then the family, and it would allow both to move forward with some hope of a future. To me it seems clear that the right thing to do would have been for Wal-Mart to write off her medical care as an expense and allow this family to keep the money.

I'm not arguing that Wal-Mart should never be allowed to reclaim money, but in this specific case the right thing to do would've been to help this family out.

Why do we keep hearing about this non-story. It sounds awful because it has the words "Walmart" and "brain-damaged" in it, but this is no different than a Worker's Comp lien (which are standard procedure).

I AM NOT CONSUMER BASHING.
A) It's a sad situation for the Shanks.
B) WalMart is not the bad guy. The rules are very evenly applied to all. I don't care if it's the WalMart Health care plan or Blue Cross. They all have the same regulation.
C) WHAT ABOUT THE ATTORNEY'S? They took over HALF the settlement and are the ones who fucked up! Why don't they give their share back? !!!!!!
Look up in Wikipedia: PRO BONO

I agree with the others that in theory this looks like the right decision. However, having actually read the original article, one of the family's claims is that the original Walmart payment didn't cover all their expenses. I guess it would be only fair if Walmart gets all the truck settlement money that they have to use it to continue to pay medical expenses until she hits their limit again.

Also hard to say it's the lady's fault (she is BRAIN-damaged, after all) but clearly the lawsuit was a mistake from the very first. It seems like the first 5 seconds of the consultation should have been:
Person1: Ok, we're going to sue for medical expenses.
Person2: Wait, isn't that what the half million dollars we already have was for?

Walmart even sent them several notices that they shouldn't accept settlements without checking with them. I'm with Hanke and Woogychuck, the lawyer really took a lot of money for nothing, all because he didn't specify "secondary" medical expenses, "lost wages", or whatever necessary to avoid this. Headline should read Lawyer's screwup gives Walmart $469k of brain-damaged woman's money.