Lessons From The Common Law Regarding
The E.Pluribus Unum Theory of Subluxations
Laurence Kahn, J.D., D.C.
Great minds think alike. Great professions are alike too. I can't tell you about great minds, but as a Lawyer/Chiropractor, I do have a nifty vantage point for looking at two great professions. So I can vouch for the fact that all great professions get growing pains.
Our own profession has grown to a point where a certain philosophical adjustment is becoming necessary. Fortunately this is due to a veritable embarrassment of riches in the form of new discoveries by researchers in myriad fields. As scientific investigations uncover more and more information of undeniable relevance to Chiropractic, more and more theories appear as to the nature of the subluxation. From time to time these theories are compiled into surveys such as Leach's THE CHIROPRACTIC THEORIES, or Kent's JSVR article (1996) on MODELS OF VERTEBRAL SUBLUXATION. The profession has happily recognized this by re‑titling the subluxation as the "vertebral subluxation complex." The word "complex" implies that there are several things going on. It also implies that the precise nature of the subluxation is not known but that it is likely to consist of more than one thing.
But notice that there is another implication which is glossed over: That there is a thing called a subluxation, there are many possible explanations for what it is, and as soon as we find and explore every possibility, we'll let you know. From the many, there shall be one; the E Pluribus Unum theory of Chiropractic.
As a practical matter, this has resulted in a problem which is philosophical in nature and which is illustrated by the following challenge: "Doctor, could you please tell me what a subluxation is?" Sure, got a month? That is, there's just too much to tell. But it is more important than patient education because we are failing to distinguish where one theory leaves off and another begins, even when we speak to each other. This is bad because it becomes even more unclear what a speaker means when he or she refers to a subluxation.
The law had to deal with exactly the same philosophical problem in the not‑too‑distant past. You might find it interesting because it suggests that we
chiropractors are doing some jumbled thinking. (Don't feel bad, the Lawyers were just as guilty on a point which is just as important to them as ours is to us.) So with that problem in mind, please bear with me while I bring you up to speed on the "Hearsay Evidence Rule," a mainstay evidence law.
You have likely heard that "hearsay' is not admissible into evidence. Hearsay evidence is 'the evidence of those who relate, not what they know themselves, but what they have heard from others." For instance, I'll bet you've been irritated when your patients practice hearsay medicine, expecting you to give them the same therapy that their Uncle Joe says his neighbor got. Joe heard his neighbor say it. So it must be true.
Even though Uncle Joe is well-intentioned, his medical advice is probably unreliable. You might want to ask Joe whether he is licensed to practice medicine, whether his neighbor was injured in the same way, or had the same medical history or had the same signs and symptoms. Uncle Joe might not know the full story, or might even be confusing his neighbor's illness with someone else's. In other words, you'd like to cross‑examine Uncle Joe.
Cross‑examination is one of the law's great tools for determining the value of a piece of evidence. Law is an adversarial system which, within a strict framework, relies on greedy self-interest to motivate competitors to expose the defects in each other's arguments. That's why people try to get their story straight before they're cross-examined: If they're unprepared, they know their opponent will be delighted to make a fool of them. If they're lying, they know they'd better lie the best they can or they'll be found out. Therefore, if the person who made a relevant statement can be brought before the Court and subjected to crossexamination, then their statement is likely to be admissible into evidence. There are exceptions, of course, but the basic rule is, "No cross-examination, no admission." Hearsay evidence runs afoul of this because the witness in court isn't the person who made the statement. The witness can be cross‑examined but the "declarant" can't.
I mentioned that there were some exceptions. These are situations where people just don't lie, so the simple fact that a statement was made in such a situation is fair proof of it's truth. For instance, they might believe they're about to die (they don't want to die with a lie on their soul); something overwhelming may have just happened to them (they're so excited that they don't have the guile to lie); they might be in an emergency room answering their doctor's questions (they want their doctors have good information so they can make good decisions.) In a different type of exception, hearsay statement might be offered for some reason other than it's own truth: "Your Honor, I'm not offering the Defendant's statement that he robbed the bank as proof that he robbed the bank, I'm offering it to prove that he speaks English."
Notice the distinction between admission of a statement, from the weight of importance it carries. Admission just means that the court may consider the testimony. It means nothing in regard to how persuasive it is. Once a statement is admitted, it's weight is going to be looked at, very closely, on cross‑examination. Something that seemed very important at first may seem trivial on closer inspection.
These days, the Hearsay Evidence Rule is a matter of statute. It wasn't too long ago, however, that hearsay evidence was a creature of common law, (that is, created by judges as they decided actual disputes, and later applied by other judges if the logic was compelling in a later case.) Courts aimed at allowing reliable testimony, while at the same time trying to exclude prejudicial statements and just plain lies. Traditionally the exceptions were explained by this or that, often making resort to a hoary concept known as the "Legal Fiction." (You may think that redundant.) Many legal fictions were created as follows: "This is the law because I, Lord So & So, want it to be and I have thought up a reason for it." (When your name is Lord So & So this sort of argument carries weight.)
The supreme legal fiction regarding the hearsay rule was that of the "Res Gestae" ("the thing done,") It can be thought of as the events and actions which make up a legal case. Statements which were made during the actual occurrence of those events were considered to be "part of the res gestae" and would therefore be admissible into evidence. Statements which were not made during those events would not be admissible. For centuries this analysis seemed to work pretty well, and courts were able to go about their business effectively.
But there was a fly in the ointment. When you try to use one word to describe several different things, eventually someone's going to write a comic farce about it. Legal scholars wearied of some of the bizarre and obviously wrong legal fictions related to hearsay. Not the least of these was the patent unreliability of many statements which are indeed "part of the res gestae," implying that being part of the res gestae doesn't by itself impart any particular reliability to a statement. Whether or not the statements were part of the res gestae often had little to do with the real reasons that the law decided to consider such statements more reliable and therefore worthy of admission into evidence.
As things eventually turned out, many exceptions to the rule were based on different types of statements a speaker may have made, or different situations they may have been in when making the statements now being testified about. In some cases, the exceptions weren't exceptions at all; instead, the actual statements they supposedly "excepted" weren't even hearsay!
Rather than continuing to appeal to an all-inclusive, shorthand justification for admitting hearsay, it became the consensus among scholars, and eventually the Courts, that the real reasons were easy enough to understand and say, so litigants ought to speak accurately. By the time I graduated from law school, it was clear that the res gestae was an antiquated concept. It would be more likely to hear doctors diagnose the “consumption” than to hear lawyers refer to a res gestae. You will therefore have sympathy for my astonishment when (older) lawyers often analyzed whether things were or weren't part of the res gestae. (To be fair, the term survives with a much more limited meaning, now somewhat synonymous with the excited utterance exception, especially in criminal cases: "Stick 'em up!" is a common example.) But there is no more common law of Hearsay Evidence, only statutory definition. You won't find "Res Gestae" in any American Statutes. But you will find an "Excited Utterances Exception" spelled out in black and white.
"But" you ask, "if the shorthand term worked alright, why go through the trouble of changing it?" If you stop and think about it for a minute, you'll see that the explanation "Because!" is on a par with your question. If you don't care about the meaning of the term, why on Earth should you care about the meaning of the answer? ("Stop being snotty," you say, "Give me a real reason!" And I say, "Q.E.D.")
Okay, so why should we care about what is really going on, when we have some jargon that seems to cover all bases? The problem is as ancient as the Greek philosopher Xeno, who suggested that an arrow could never reach it's target: He thought that if you looked at only an instant of the arrow’s flight, the arrow, in that instant would not be moving. Therefore, he argued, the arrow never really moved. This, in a word, is kookoo.
At least since Plato, people have known that such paradoxes were just tricks with words. Socrates dismissed them as "sophistry and illusion," using the same words without parsing out their different shades of meaning. But writers endlessly make mistakes with logic and language. Unfortunately for them, logic is an immortal bully that hangs around to give people wedgies. You and I might accuse them of sloppy thinking. Philosophers call it "quantifier switch." It's the logical fallacy of confusing one thing with many things (or the other way around.) It's a fancy name for ambiguity, and in law and in science, ambiguity breeds contempt.
By now I'll bet you've guessed why I'm telling you all this: Maybe the subluxation is at the same place that the law was fifty years ago. (Considering how law has since developed, that may not be a good thing.) On the other hand, in our profession which says it cares about philosophy, wouldn't philosophical clarity be a desired and noble goal? As much current chiropractic and allopathic research is making clear, chiropractors affect many different things. Some of these will be more likely or less likely to respond to CMT.
Nevertheless, chiropractors persist in calling all the things we affect the same thing, even if they know better. The alibi might be economic (as in the case of Medicare) or legal (as in states where DC's are licensed only to correct
subluxations.) Undeniably, it is going to be hard to tell one sort of subluxation from another by motion palpation. Philosophically speaking, however, clinical difficulty in distinguishing one from the other is no excuse for claiming that there is no difference.
Selfishly speaking (as a profession,) it is hideously counterproductive to give the same name to many different things. It is a sure sign of incomplete understanding when a sign is treated as a diagnosis. At least allopathic medicine generally has the courtesy to add "idiopathic" to alert you that it isn't sure what it's dealing with. Chiropractic makes great fanfare about "treating the cause instead of the symptoms, and chiropractors feel good that so much research supports the existence of "the subluxation" and the many different phenomena that subluxation could be.
But it seems a whole lot more likely that what's been proven is the existence of many different lesions, or many different subluxations. What's been disproven is the existence of one particular lesion.
All of diagnosis is a kind of prejudice: For example, it was recently very common to lump all tendon lesions together and call them “tendonitis.” Of course this led to giving the wrong treatment for tendonosis. You have little way of knowing whether your patient has tendonosis or tendonitis, but knowing that there are the two possibilities gives you the choice to treat the most likely one first.
By the same token, clinging to the subluxation as a shorthand description for many different lesions, is likely to lead to ineffective or wrong therapies. Other than semantic preservation of a superceded word, this strategy, for the profession, has little philosophical or practical benefit.
Please understand that this is not an argument about so-called Straights and Mixers. I'm not saying that anyone is right or wrong. This is a philosophical point which in itself has nothing to do about Chiropractic. The point is this: As we come to really understand what we're talking about, we need to speak clearly so that everyone else can understand us too. I believe that Chiropractic ought to give up the E. Pluribus Unum theory of subluxations and grow to a new understanding where from the one term, we arrive at many, each referring to its own underlying cause.
©2009 Laurence Kahn, J.D., D.C.
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