Neuropsychological Exams-The DME Order
On another post on this website on defense medical exams, there are basic terms of what an order should contain. However an order for a neuropsych exam should be different. There are several things that the Order should address:
1. Time and Place
Both FRCP 35 and Rule 4:10 require that the Order set forth the time and place. Such an exam should take no more than eight (8) hours. The Order should state a start time and a time by which the exam will be finished, allowing for reasonable breaks including a lunch break.
The Order should state the location. If the location is some distance away or if your client’s disabilities require some modifications, then the Order should direct the defense to provide the transportation by a licensed and bonded transportation company i.e., not an Uber or a paralegal from the office of defense counsel.
2. Who will Conduct the Examination?
Both FRCP and Rule 4:10 require that the Order specify who will conduct the examination. If there is going to be a staff member, typically a psychometrist involved, that person should be identified. That person likewise should be suitably licensed and certified. Peters v. Nelson, 153 F.R.D. 635, 637 (N.D. Iowa 1994) Prior to signing off on an Order, you should check out the background of the neuropsychologist. If there is a basis for rejecting that neuropsychologist, then the appropriate motion should be filed.
3. Scope of Exam
The Order should expressly state that any forms to be completed or any questioning of the plaintiff should be limited to matters reasonably related to the plaintiff’s neuropsychological condition. Plaintiff should not be required to bring anything to the exam. A copy of any forms that are completed by the plaintiff should be tendered to the plaintiff at the conclusion of the exam.
4. Manner and Conditions of the Exam
Both FRCP 35 and Rule 4:10 state that the Order must address the manner and conditions of the exam.
Federal Rule of Evidence (FRE) 702 requires that an expert’s opinion be “the product of reliable principles and methods”. There is no equivalent rule in Virginia. However the case law does state that expert testimony cannot be founded on speculation or assumptions but has to be based upon adequate facts. Keesee v. Donigan, 259 Va. 157, 161 (2000)
The best way to ensure that the opinions are the product of reliable principles and methods is for the examination to be video-recorded. This video recording should not be undertaken by the plaintiff but should be done professionally. Zabkowicz v. W. Bend Company, 585 F.Supp. 635, 636 (E.D. Wis. 1984). There are a host of problems that may be revealed and or prevented by video recording: failure to give proper instructions, failing to maintain time limits for responses, inaccurate timing, failing to record the correct answer, failing to follow the rules as to when follow-up tasks are to be done, providing prompts when that is not allowed, failing to record the response given, failing to note that the plaintiff is sedated or sleepy or falling asleep.
The defense may counter that by saying that the plaintiff’s examinations with their own physicians is not recorded. Clearly that is not applicable. The defense doctor cannot be considered to be a neutral. Zabkowicz at 636.
The decisions are mixed as to whether or not video recording is allowable. Kuslick v. Roszczewski, 2012 W.L. 899355 (E.D. Mich. 2012) (requiring video recording); Schlenker v. G & R Integration Services, 2021 W.L. 6805706 (D.N.D. 2021) (allowing audio but not video).
The American Psychological Association (APA) has stated that psychologists have the option of conducting evaluations in the presence of a third party observer or video or audio recording. https://www.apa.org/science/programs/testing/third-party-observers.pdf
The APA has also instructed psychologists that when considering video recording of exams, practitioners should consider the need for transparency and documentation. 68 Am. Psych 7, 17-19 (2013)
The APA further encourages psychologists to recognize the importance of documenting all data they consider with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery. 68 Am. Psych 7, 17-19 (2013)
In addition the APA, during Covid, set certain standards for conducting neuropsychological evaluations by way of video conferencing. 34 The Clinical Neuropsychologist 1314 (2020) Obviously if the presence of video cameras invalidated the testing, then these bodies would not have embraced such video recording.
Recording
The defense may raise a variety of arguments as to why there should be no recording. First, they may argue that it breaches the standardized requirements of the test. The American Psychological Association Committee on Psychological Tests and Assessments in 2022 issued a statement on third party observers and stated that psychologists have flexibility when deciding to allow for a videographer or a third party observer to be present.
Second, they may argue that the presence of the videographer will make the subject uncomfortable. The subject is a plaintiff in a lawsuit. The plaintiff is probably going to be uncomfortable being in the office of a defense doctor who has been retained by the defense to testify against that person. The presence of a videographer may actually make the person feel more comfortable.
Thirdly, they may argue that the defense did not have an opportunity to have an observer present during the testing of the plaintiff by the plaintiff’s treating neuropsychologist. That is true however that was not an examination where the plaintiff was subject to interrogation by a defense witness without counsel being present.
Finally, they may argue that the professional person is the best observer of the test subject and should be allowed to make those observations freely. That may be true but the opinions of that neuropsychologist are based on what the plaintiff says, how the plaintiff acts and the overall demeanor of the plaintiff. A video recording would preserve that.
5. The Length of the Exam
This is something that should be addressed by the order. The order should state how long the exam will be. If the exam is going to be 8 hours, that should be explained as to the need. If no good reason is offered, then the exam should be opposed.
6. Test Data and Test Materials
The terminology that is used in regards to this material is test data, test material and raw data. The test data arguably includes the raw data. The test material are the manuals, instruments, protocols and questions that are used as defined in the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct, § 9.04. The raw data is defined in the American Psychological Association’s Dictionary of Psychology and includes all of the original measurements.
FRE 702 requires that expert opinions be based on sufficient facts or data. This is consistent with Virginia case law. The federal law gives the right to examine an expert regarding their opinions. Lawrence v. Nutter, 203 F.2d 540, 543 (4th Cir. 1953) The best way to explore the foundations is to examine the data that they relied upon. Frequently defense counsel will offer to send the raw data to the plaintiff’s psychologist. That is not sufficient. It may be that there is no plaintiff’s psychologist. It may also be that the plaintiff’s psychologist does not want to look at this data. More importantly it is not the plaintiff’s psychologist that will be cross-examining the defense doctor.
Nothing in the APA’s ethical principles or code of conduct prohibits release of test data in accord with a court order. This is sometimes defined as raw or scaled scores or by other terms. The test materials typically are defined as manuals, instruments, protocols, questions or stimuli. Instead what the principles and code of conduct state is that the test data should be provided as required by law or court order and that reasonable efforts be made to maintain the integrity and security of that material. www.apa/ethics/code
No Ethical Rules Prevent Disclosure
Paragraph § 9.04(a) of the APA Ethical Principles addressed this issue and do not prohibit the release of this data.
Additionally HIPAA gives an individual an absolute right to obtain copies of their medical records. This is also reconfirmed in Va. Code § 32.1-127.1:03(A).
In addition the defense may try to argue that the test material is copyrighted. It’s highly unlikely that the neuropsychologist is the holder of any copyright. In any event, the Fair Use Doctrine clearly allows for some fair use of the material. 17 U.S.C. § 107 is the Fair Use Doctrine. It allows for what is called “fair use” of the material. If there is a genuine copyright concern, then of course that can be addressed through a court order.
The defense may also say that licenses that the expert has with the companies selling the tests prohibit the release of test material or data.
The response to that should be as follows:(1)the rules expressly give the court absolute discretion to specify the manner and conditions of the exam; (2)Plaintiff’s counsel has the right to cross-examine the defense doctor about their opinions as stated in Lawrence.
7. The Expert Report
The report should expressly identify each test administered and all sub tests by name and include the scaled scores and percentiles for each test.
See the blog on this site dealing with the neuropsych exam rules
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Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages. Also see the post on this site dealing with injury issues.
