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Black Pain Matters: The Need for a Health Justice Approach to Chronic Pain Management

Posted: 13 Jun 2015 Last revised: 12 May 2016

Seema Mohapatra

Barry University - Dwayne O. Andreas School of Law

Date Written: May 13, 2016

Abstract

Over 100 million Americans suffer from chronic and undertreated pain. Such pain costs the United States over $635 billion annually in medical bills, lost productivity, and missed work. Although there are many effective kinds of pain medications available, physicians are increasingly hesitant to prescribe opioids and narcotics. Due to the increased regulation and investigation of “pill mills,” doctors often distrust patients who say they are in pain, especially when they do not have obvious physical reason for the pain. Unfortunately, the most common way for physicians to “test” chronic pain is to ask patients to self-report their pain from a scale of 1-10. Therefore, it is necessary for a physician to trust a patient in order to believe their rating. However, when doc-tors doubt that their patients are telling the truth, this leads to patient mistrust in the doctor and the medical system. The distrust that physicians feel about pain complaints is heightened when the complaints are coming from black patients. Numerous studies show that doctors disregard or dis-count complaints of pain by black patients at much higher levels than they do for white patients. In a recent survey that was featured in many news sources, including the front page of the New York Times, of 222 white medical students and residents about half endorsed false beliefs about biological differences between blacks and whites. These medical students also perceived blacks as feeling less pain than whites, and were more likely to suggest inappropriate medical treatment for black patients, according to the paper published in the Proceedings of the National Academy of Sciences. This is extremely troubling because it shows these false notions of a biological resistance to pain in blacks, which was propagated since the times of slavery, is still persisting and in populations charged to be fiduciaries of patients’ good health.

Much of my past work has focused on health disparities, I have often examined technological innovations in health care and how they affect minority and disadvantaged populations. Although the pain treatment disparity has been known for some time, I wanted to examine if neuroimaging as a potential objective test for pain would potentially solve this pain gap. There is much hope and promise that neuroimaging, specifically fMRI technology, will be able to used as an “objective” measure of pain. The majority of the buzz about this technology has been in legal circles because of its potential to change the subjective measure of pain in tort cases. In fact, this objective test has already been used by plaintiffs who are hiring private companies to do their brain scans to “prove” their pain in court successfully. I wanted to examine whether the use of an objective measure of pain may have the effect of leveling the playing field, by allowing women and minorities to “prove” their pain. Instead of helping resolve this problem, this article concludes that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Part II of this Article describes how pain is defined clinically and how it is undertreated, especially in African Americans. In Part III, I delve into the reasons that physicians are undertreating pain, from concerns about the opioid addiction crisis to biases that they harbor about their patients. Part IV examines neuroimaging as an objective test for pain. This Part describes how such testing has been used in torts and criminal cases thus far. This Part then examines how such technology may be used deny coverage and dis-ability claims more often than in validating patient pain. In the near future, we can expect neuroimaging to be used by the Social Security Administration (“SSA”) to adjudicate disability benefits based on pain, by physicians to decide who deserves pain management medication, and by insurance companies for coverage determinations. There is distrust in the medical community of those who complain of chronic pain, and such distrust exacerbates when the patient is female or a racial minority. This section examines whether the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments. What I suggest is that a comprehensive health justice approach is needed to properly address the pain treatment disparities that exist in the United States. Health justice, a concept rooted in international law, requires a regulatory and jurisprudential approach that considers the health ramifications of judicial and legislative decision making and” the development of laws and policies that prevent health inequity and increase individual capability. ” A health justice framework promotes the health of low-income and minority individuals and preserves the foundational liberty rights of all people. Public Health Law scholar Emily Benfer recently proposed a framework of health justice that I find compelling. I apply this health justice frame to the pain management disparity crisis that exists in the United States. Using a health justice lens, I suggest addressing unfair laws in pain management that contribute to African Americans being undertreated for pain. I also suggest requiring medical training to address biases that physicians and medical students hold against African Americans. Implicit bias affects all aspects of medicine and the law. To achieve true health equity and social justice, we must work to eliminate bias in the medical and legal system on an individual basis. Finally, I discuss my hope that public health advocates will engage African American communities who are suffering this pain treatment disparity and its negative impact. This may spearhead a community-based approach. Just as the Black Lives Matter movement has brought the issue of violence against African Americans to light, a type of “Black Pain Matters” movement would be effective in convincing decision makers at the legislative level to make positive changes in these arenas. When the impetus for change comes from within the African American community, change-makers are more likely to engage in discussions to come up with meaningful solutions. I suggest that all of the medical journal and law review articles in the world will not have the same effect to convince racial minority. This section examines whether the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective ex-perience of pain, and how this varies by race and gender. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments. What I suggest is that a comprehensive health justice approach is needed to properly address the pain treatment disparities that exist in the United States. Health justice, a concept rooted in in-ternational law, requires a regulatory and jurisprudential approach that considers the health ramifi-cations of judicial and legislative decision making and” the development of laws and policies that prevent health inequity and increase individual capability. ” A health justice framework promotes the health of low-income and minority individuals and preserves the foundational liberty rights of all people. Public Health Law scholar Emily Benfer recently proposed a framework of health jus-tice that I find compelling. I apply this health justice frame to the pain management disparity crisis that exists in the United States. Using a health justice lens, I suggest addressing unfair laws in pain management that contribute to African Americans being undertreated for pain. I also sug-gest requiring medical training to address biases that physicians and medical students hold against African Americans. Implicit bias affects all aspects of medicine and the law. To achieve true health equity and social justice, we must work to eliminate bias in the medical and legal system on an individual basis. Finally, I discuss my hope that public health advocates will engage African American communities who are suffering this pain treatment disparity and its negative impact. This may spearhead a community-based approach. Just as the Black Lives Matter movement has brought the issue of violence against African Americans to light, a type of “Black Pain Matters” movement would be effective in convincing decision makers at the legislative level to make positive changes in these arenas. When the impetus for change comes from within the African American community, change-makers are more likely to engage in discussions to come up with meaningful solutions. This health justice approach is more likely to have more effect in lessening the pain gap than any objective measures of pain ever would.

Keywords: Objective Pain Test, Racial Disparities in Health Care, Women and Health Care

Suggested Citation

Mohapatra, Seema, Black Pain Matters: The Need for a Health Justice Approach to Chronic Pain Management (May 13, 2016). Available at SSRN: https://ssrn.com/abstract=2617895

Seema Mohapatra (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807

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