Does it Matter What the Pain Doc Does?

Does it Really Matter What the Doctor Does?; James Stacks, Ph.D.; War on Doctors/Pain Crisis blog of the Pain Relief Network; 2007-09-30.

No. Although there is a lot of effort going into discussion of what constitutes proper prescribing, attempts to protect oneself by staying within those ever-shifting ‘bounds of acceptable medical practice‘ may be futile. Our society and legal system have deteriorated to a point where old ideas about criminal trials no longer apply.

In jury trials, what is more important than factual guilt or innocence is the reasoning and beliefs of the jurors. If the trials of Richard Paey, William Mangino, and others have taught us anything, it is that actual innocence is not a reliable defense. I think I know why.

To understand what is going on, you have to place yourself in a real courtroom, and think of how it works in terms of how our society works in general. For the past 30 years, our society has increasingly expressed a desire to return to simple values and respect for authority. That has resulted in an extraordinary amount of power delegated to police and prosecutors.

Jurors, who are just legally inexperienced citizens, are drawn into a strange and somewhat threatening situation that they really do not understand. They are isolated, among strangers, and out of their comfort zone. They do understand the forces of authority that they have been taught to recognize and obey, to whom they look for instructions on how to behave in order to stay out of trouble. Jurors do not evaluate evidence for innocence or guilt. Instead they actually feel guilt and fear if they publicly disagree with the symbols of authority, the police and prosecutors.

A ‘not guilty’ verdict by a jury amounts to a public challenge of Authority, and usually jurors just won’t risk it. They don’t want to behave “badly” in front of authority figures, and express obedience by repeating their opinions and orders. Medicine is technical and complicated; jurors do not have anything like a peer understanding of it. But it takes no special training to know who the Authority is, and Jurors naturally side with them. Siding with authority is what we as a society have preached for some time now, and the evening news and police dramas on TV persistently warn that it is the only safe thing to do. We shouldn’t be surprised when juries behave this way.

George Lakoff, the renowned linguist at Berkeley, has noted that voters do not vote for candidates based on the candidate’s position on specific issues. Rather, voters identify with what they believe to be the candidates’ overall values. Appealing to juries with evidence of factual innocence is like appealing to voters about issues. When facts conflict with values, facts lose. In Lakoff’s words, “the facts bounce off” of the voter’s belief system.

In a courtroom, most people naturally believe the prosecutor is the “good guy” who shares their values. Every citizen is led to believe they must support and defend the acts and claims of the authority figures at all times. In the current political environment, to disagree is tantamount to “supporting criminals”, just as lawful dissent is labeled as “treasonous.”

Should proponents of pain medicine challenge the current Federal rampage against pain medication by defending physicians at jury trials? I think I believe some efforts should be put on legal defense of pain treating physicians and pain patients if only because common decency demands we defend the weak and the sick. But I also think we need to acknowledge that the jury trial approach to activism may not be the best place to concentrate efforts.

The revolution of the sixties succeeded largely because a benevolent judiciary favored individual rights and advocated questioning of authority. That judiciary has been replaced with a very conservative group who have largely turned their backs on individual rights. This is why many reformers today are aiming directly at the legislative branch for justice. So I believe it makes sense that the lion’s share of the pain relief advocacy effort be aimed at Congress. The Pain Relief Network seems to have recognized this, and are currently focused on implementing a Congressional strategy.

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