We read a case in my first-year Torts class in which a labor union’s health insurance fund paid a member’s medical bills ($22,700). When the member settled his case against the driver who hit him (for $250,000 — lots of pain and suffering!), the union wanted its $22,700 back. (In lawyerspeak: The union sought to be reimbursed out of the settlement funds for its previous payments of the medical bills of its insured (subrogation), despite the fact that there was no subrogation clause in the insurance contract or plan documents.)
The issue was whether health insurance was more like property insurance (where insurers promise to indemnify their insureds against actual losses and have an implied right of subrogation in the absence of contract language) or more like “personal insurance” (the best example being life insurance), where the insurer promises to pay a sum certain upon the occurrence of an event (like the death of the insured) and therefore subrogation is not allowed by implication.
There are arguments in favor of either result, some based on contract language (i.e., what was actually promised) and some based on considerations of social policy. The court’s opinion wasn’t a model of clarity or completeness in terms of the various arguments and ultimately decided (counter-intuitively) that health insurance does not give rise to a right of subrogation by implication because health insurance is more like personal insurance than property insurance. The court reached this conclusion even though health insurance contracts promise to pay the insured’s actual losses, which makes them seem more like property insurance (where subrogation is available by implication) and less like life insurance.
As I walked from my office to the classroom this morning, I was expecting a lively debate in which I played two students against one another while 91 others sat and waited for us to get to something that might actually be on the final exam.
To involve the whole class, I invoked the “Think, Pair & Share” device that I first heard about at CTE’s Sparks event a few weeks ago. I gave the students about 5 minutes to write an argument in favor of each result. Then they paired up with a neighbor and discussed their arguments. The room was rocking! Then they shared their arguments with the rest of the class (not all 40+ pairs shared, of course). I put all the arguments up on the board, solicited more arguments from the class, and then asked for counter-arguments. The discussion was rich and I had tons of volunteers who wanted to be heard. TP&S worked like a charm!
I don’t want to overuse this device, because I think part of its effectiveness was that it was different — a rare departure from my usual “call and response” large-class routine. It’s also not particularly efficient in terms of pure coverage — we spent 20 minutes on a point that I could have covered in ten minutes with my two-students-debating approach. By another measure of efficiency, though, it was a blazing success: In 20 minutes I had 90+ students actively engaged in digging out and analyzing some difficult policy arguments. Doing that two students at a time for 10 minutes each would take 7.5 hours!
My recommendation for Think, Pair & Share: try it — you’ll like it.