The first thing we do, let's kill all the lawyers. - Henry VI - Shakespeare
This line even got a laugh in Shakespeare's time. But it's important to understand the context. Henry VI was planning a revolution and didn't want the lawyers to slow him down. If knocking off the lawyers is the sign of a planned revolution, then the pharmaceutical industry has done a pretty good job so far.
Dr. Wakefield's complaint against the British Medical Journal, Brian Deer, and Fiona Godlee for defamation can be best understood as the first stirrings of a counter-revolution.
Let me back up and explain.
I think it's incredibly difficult to create a legal system which can successfully resist the various pressures put upon it. That's why the creators of the Anglo-American justice system put such a premium on a system of checks and balances, instituted an advocacy system, and established rules of discovery. They expected people to be flawed. They expected undue pressures and prejudices to be placed upon the proceedings at some point. They anticipated that people's opinions would inevitably color their judgments and tried to make adjustments. They understood the truth was most likely to come out when both sides were able to present their strongest case. You get to confront your accusers. You get to put on your best witnesses. The other side needs to divulge their darkest secrets.
Only when all things are revealed and thoroughly debated can one attempt to deliver justice. It may not be the best system, just better than all the others which had been tried.
The form of the court and the various protections offered to both sides are the best defense against injustice and the protection of society.
Now consider the creation of the Vaccine Court in our country. In the 1980s the vaccine manufacturers were screaming that they would be run out of business by the legal claims of parents of vaccine-injured children when the schedule contained 10 vaccine doses. What was the response? Study the problems of vaccine-injured children? Make the vaccine schedule safer? No, create a special Vaccine Court which would essentially prevent laywers from being lawyers, then add at least 26 more vaccine doses to the schedule.
Imagine a typical products liability case, let's say a wood-chipper which has unfortunately hacked off a couple of your client's fingers. As the lawyer you get to ask the company for all the complaints they've received in which their wood-chipper has chopped off a customer's fingers and they need to provide you with those records. Now, the number of times the wood-chipper has chopped off other people's fingers may not determine whether they are responsible for your client's accident, but it's a good place to start. This is the way things go in pretty much every civil court in the country.
But that's not the way it is in Vaccine Court.
On the question of whether the MMR vaccine was linked to the development of autism the attorneys in the case asked for all complaints to the Vaccine Adverse Reporting System (a government-supported database) in which parents alleged that autism developed after the MMR shot. The request was denied. The rules in vaccine court are much different. It's a pseudo-court, lacking the protections which would be found in any civil court in the country.
And what about the proceedings in the General Medical Council against Dr. Wakefield?
The issue which seems to generate the most discussion about Dr. Wakefield is whether he accurately described the histories of the children as related to him by the parents, the medical results themselves, and whether or not he altered data. Isn't that what we all really want to know? Did these children really develop autism after the MMR shot and can we find evidence of the measles-strain of the virus persisting in their gut for years after it should have cleared their system? If that's what we really want to know it seems you'd want the parents and medical experts to testify about these issues. You'd also want to question the personnel of the lab which performed the tests. And while you're at it, how about some of the other doctors who reviewed the gut biopsies? That's what would happen in a normal trial.
But the proceedings of the General Medical Council weren't those of a normal trial. They were those of a pseudo-court. They didn't even want to hear from the parents, inspect the relevant medical records or question the lab personnel who performed the tests. Whose interests were served by denying the parents a voice? How can you judge the science if you don't talk to the scientists who did the work?
With this latest action Dr. Wakefield has put these issues back in the regular court system. Long live the lawyers!
Kent Heckenlively is a Contributing Editor to Age of Autism