Brain injury experts may be either neurologists, neurosurgeons or neuropsychologists. The proposed cross examination below is designed for the first two. Cross of a neuropsychologist must be further refined to avoid the chance of the witness giving opinions on causation. In addition, neuropsychological exams are addressed on this site. This cross-examination should be reviewed with other pages on this site: cross-examination, cross-examining experts, cross-examining defense medical experts, standard of care.
In cross examining neurologists and neurosurgeons you must define some basic terms and proceed from there. The cross may proceed as follows:
Defining Terms with Brain Injury Experts
- First of all a traumatic brain injury is defined in the Clinical Practice Guidelines of the Veterans Administration and the Department of Defense as having several facets. One of those facets is any alteration in mental state at the time of the injury.
- The guidelines use the terms “concussion” and “mild to moderate traumatic brain injury” interchangeably.
- A widely accepted definition of a mild traumatic brain injury from the American Congress of Rehabilitation Medicine is that such patients exhibit persistent emotional, cognitive, behavioral and physical symptoms alone or in combination, which may produce a functional disability.
- The Concussion Quick Check by the American Academy of Neurology states that loss of consciousness occurs in less than 10% of people with concussion.
- Also the Virginia state regulations define a traumatic brain injury as to a child at 8 VAC 20-81-10:“Traumatic brain injury” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. (34 CFR 300.8(c)(12). The federal regulation is the same.
Loss of Consciousness
Loss of consciousness is an important marker to you:
- If you lost consciousness right now how would you know
- Isn’t it true that all you would really know is that there is a gap in your memory
- Also if there are no witnesses observing the person isn’t it tough to know if there was a loss of consciousness
Symptoms
The symptoms that may be associated with a concussion or mild to moderate traumatic brain injury are
- Physical: headache, nausea, vomiting, dizziness, fatigue, blurred vision, sleep disturbance, sensitivity to light or noise, balance problems, transient neurological abnormalities.
- Cognitive: attention, concentration, memory, speed of processing, judgment, executive function.
- Behavioral/emotional: depression, anxiety, agitation, irritability, impulsivity, aggression.
Setting the Baseline with Brain Injury Experts
- Did you review the plaintiff’s prior medical records and other records that establish the baseline?
- Establish what the baseline of the plaintiff is. Ask the witness exactly what he knows about the client’s prior condition.
- Did the expert conduct the global assessment of functioning?
- If he did not then have him do that on the witness stand.
- Does he have any knowledge of problems that the client was having at home or work prior to the injury?
- Any evidence of problems that the client’s family, friends or fellow employees reported prior to the injury?
- Did you take statements of any of these family members?
- Would you agree that the level of functioning of the plaintiff prior to the injury would put him in the 90 – 100 range which is the range of superior functioning?
- Finally using another copy of the same visual aid referred to above have the witness cross off all the symptoms for he has no proof existed before the injury.
Symptoms of the Plaintiff
Using a visual aid that contains all of the symptoms above circle all of the symptoms the plaintiff has complained of.
- The symptoms that the plaintiff has complained of meet the criteria for a mild traumatic brain injury.
- The neuropsychological testing demonstrated many of these same symptoms. On your visual aid mark the symptoms borne out by the neuropsychological testing.
- The neuropsychological testing is objective.
- Have the witness acknowledge that the plaintiff has complained of attention and concentration disorders.
- Also attention and concentration issues are cognitive deficits that are consistent with mild traumatic brain injury.
Rule Out the Negatives with Brain Injury Experts and Decide What We Can Agree On
- A brain injury can occur even though there has been no blow to the head;
- There does not have to be a loss of consciousness to sustain a brain injury.
- You can’t reject the diagnosis of traumatic brain injury because there has been no loss of consciousness.
- Also a normal neurological examination does not rule out a traumatic brain injury.
- MRI and CT scans are often normal on a patient who has suffered a mild traumatic brain injury.
- MRI and CT scans are often not sensitive enough to detect brain damage.
- The reason that a doctor orders an MRI or CT is to look for a brain bleed.
- Doctors often fail to diagnose TBI, even when the patient has sustained such.
- The accuracy of the mild traumatic brain injury diagnosis in emergency rooms is 56% false negatives. (Archives of PMR, Volume 89, August 2008)
The Future
- These symptoms can affect the client’s activities of daily living.
- A person with a TBI may experience the symptoms for a long time.
- Some people with traumatic brain injuries never recover.
- Also people with these problems can experience difficulties at work.
The Gold Standard
When the defense doctor says that the plaintiff has not suffered concussion, then get the doctor to admit that the gold standard is a good neuropsych evaluation. Assuming you have that, then you’ve met your burden of proving a brain injury, even by the defendant’s standards.
Higher Risk Patient
- Does the plaintiff have a history of psychiatric issues?
- Would you agree that people with a history of depression or anxiety have worse outcomes following an injury?
- Is a history of depression a risk factor for a poorer outcome following a traumatic brain injury?
- If the client has any prior history of psychiatric conditions then that is a preexisting condition which puts the client at a higher risk for a poor outcome.
- Could the plaintiff’s history explain why she has not fully recovered?
- In addition would a person such as this plaintiff be expected to have a worse outcome than someone with no history?
- A prior concussion is a risk factor for a worse outcome.
Personal Experience
- Ask the doctor how many TBI patients he has treated over the last 3 years.
- Move on to another topic and then 30 minutes later come back and ask the doctor how many of those patients he reported to the Virginia DMV as being unable to drive.
- Also if time permits and this question was asked during deposition then subpoena the DMV to confirm whether or not he is telling the truth.
- The witness testified that the client fully recovered from any injury within 6 months of the injury. Is that based upon the population statistics that 85% – 90% of people with mild traumatic brain injury fully recover within the first 6 months.
- Finally this would mean that 10-15% do not recover.
The Patient Recovered
If the doctor maintains that the plaintiff has recovered, then pin the witness down as to exactly when that happened. In particular ask:
- Where in the records does it say all symptoms were resolved?
- Where do your referrals come from?
- Is it correct that most of your referrals for traumatic brain injury come 3 to 12 months after the injury?
- Do you treat these patients?
- The Journal of Neurology, Neurosurgery and Psychiatry May 2006, Volume 77 (5), pages 640-645 in an article entitled “Disability in Young People and Adults After Head Injury” the authors found that of patients admitted to the hospital after a head injury, 5 to 7 years after the injury, disability remained frequent in 53% of them, 25% of them had deteriorated. There were strong indices of depression, anxiety, low self-esteem.
- The Journal of the American Association of Medicine, Neurology, September 1, 2019, Volume 76 (9), pages 1049-1059 in an article entitled “Recovery After Mild Traumatic Brain Injury in Patients Presenting to US Level I Trauma Centers”, the authors found that most patients with mild traumatic brain injury presenting to Level 1 trauma centers reported persistent injury-related life difficulties a year after the injury.
- In Neurology, Volume 45 (7), pages 1253-1260, in an article entitled Mild Traumatic Brain Injury, Dr. Alexander concluded that at one year after injury, approximately 15% of patients were still having disabling symptoms.
- The British Medical Journal, Volume 320, June 17, 2020, in an article entitled Disability in Young People and Adults One Year After Head Injury, found that survival with moderate or severe disabilities was common after mild head injury and similar to that after moderate to severe injury.
Re-thinking John v. Im
In the case of John v. Im, 263 Va. 315, 559 S.E.2d 694 (2002) the Court stated an opinion on causation of a “physical human injury” is a component of a diagnosis. A diagnosis is a component of the practice of medicine. Therefore a licensed clinical psychologist cannot state such an opinion. The injury in this particular case was a mild traumatic brain injury.
The Court in John relied upon Combs v. Norfolk and Western Railway Co., 256 Va. 490, 507 S.E.2d 355 (1998). There the Court stated that causation of human injury is part of the diagnosis which is part of the practice of medicine. Also in 2002, the same year as John, the Court stated in the context of a sexual assault that a sexual assault nurse examiner in that case could express an expert opinion on the causation of injuries. In John the Court noted that latter holding is limited to that factual scenario. The general rule remains that only a medical doctor can give an expert opinion about the cause of a physical human injury.
Five (5) years after John, the Court in Conley v. Commonwealth, 273 Va. 554, 643 S.E.2d 131, said neither John nor Combs bars a licensed clinical social worker from diagnosing mental disorders. In Conley the Court was dealing simply with diagnosis and not an issue of causation.
Causation Testimony
The Supreme Court of Maryland tangentially addressed this issue in Savage v. State, 455 Md. 138, 144 (2017). In Savage, although the Supreme Court held that the challenged neuropsychologist’s ultimate conclusions were inadmissible because they were not generally accepted in the neuropsychological community and did not “connect the dots,” the Supreme Court held that the neuropsychologist was competent and qualified to render a medical diagnosis of traumatic brain injury – the Court specifically stated that any view to the contrary was “incorrect.” Savage, 455 Md. at 160. In Savage, the Court favorably cited Bennett v. Richmond, 960 N.E.2d 782, 788–89 (Ind. 2012), which was a case in which the Supreme Court of Indiana held that a neuropsychologist is qualified to and may testify to the cause of any neurocognitive disorders which he or she has diagnosed. See Bennett at 791.
The majority of other states that have addressed this issue have also ruled that neuropsychologists are qualified to offer causation opinions even though they are not medical doctors. See, e.g., Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681, 690 (Colo. 1998) (holding that neuropsychologists may, with the proper foundation, opine on the physical cause of an organic brain injury); Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. Ct. App. 1997), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003) (holding that a neuropsychologist was qualified to testify to the cause of an organic brain injury); Madrid v. Univ. of California, 105 N.M. 715, 717 (1987) (holding that a neuropsychologist is qualified to testify to the cause of a brain injury); Seneca Falls Greenhouse & Nursery v. Layton, 9 Va. App. 482 (1990) (holding that a neuropsychologist is qualified to testify regarding the causal relationship between a claimant’s insecticide exposure and injury); Howle v. PYA/Monarch, Inc., 288 S.C. 586, 594 (Ct. App. 1986) (holding that a psychologist, once qualified as an expert witness by reason of education, training, and experience, is competent to testify to causation of mental and emotional disturbances); Adamson v. Chiovaro, 308 N.J. Super. 70 (App. Div. 1998) (holding that a neuropsychologist was qualified to testify as an expert about the causal link between a plaintiff’s deficits and the incident giving rise to the case); Sanchez v. Derby, 230 Neb. 782, 785 (1989) (holding that it was an abuse of discretion to preclude the neuropsychologist from offering expert opinions about the causes of the brain injury at issue); Valiulis v. Scheffels, 191 Ill. App. 3d 775, 786 (1989) (holding that the expert neuropsychologist was qualified to testify concerning the causal connection between the trauma suffered in the accident and the onset of symptoms); Fabianke v. Weaver ex rel. Weaver, 527 So.2d 1253, 1257 (Ala.1988) (affirming the trial court’s admission of testimony of a neuropsychologist regarding the causal connection between respiratory distress resulting from premature childbirth and the risk of a specific learning disability); Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 886–87 (Iowa 1994) (holding that a neuropsychologist may testify regarding the causal connection, or lack thereof, between an accident and the injuries complained of); Cunningham v. Montgomery, 143 Or. App. 171 (1996) (holding that an expert neuropsychologist was qualified to testify to the medical cause of the cognitive defect suffered by the patient in a malpractice action in which the patient suffered hypoxia that caused cognitive damage due to the neuropsychologists’ specialized training and experience with patients suffering from hypoxia).
In the past, the American Psychological Association has filed legal briefs as amici curiae in support of the position that its members are qualified to render causation opinions in court.
State Regs.
Throughout the period of time when these decisions are being rendered, there are pertinent statutes and regulations in effect. Virginia Code § 54.1-3600 was enacted in 1988. It says that the practice of psychology includes but is not limited to diagnosis and treatment of mental disorders. I don’t find a definition of the word “diagnosis” in the Code. It is defined in Black’s Eleventh Edition as meaning “a determination of a medical condition by a physical examination or by a study of the symptoms.
8 VAC 20-81-10 defines traumatic brain injury as to a child and in that definition does not use the words “physical injury”.
18 VAC 125-20-121 dealing with continuing education courses for psychologists says that they should emphasize the diagnosis of patients with moderate and severe mental disorders. The DSM5 recognizes traumatic brain injury as a neuro-cognitive disorder.
VA and DOD
The practice guidelines published by the Veterans Administration and the Department of Defense entitled, Clinical Practice Guidelines for Management of Concussion/mTBI define traumatic brain injury to include either a structural injury or a physiological disruption of the brain’s function as a result of some external force that results in certain defined clinical signs which are then laid out within the definition. This definition is noteworthy. It means that a traumatic brain injury is not just a physical injury. It may simply be a physiological disruption. Physiology is a branch of biology. It is that branch of biology that deals with functions of organisms. As such a physiological disruption may mean simply that some part of the brain has been moved. There are billions of neurons within the brain. It may be that none of them have been injured as a result of the external force. Rather they may have simply been moved. Their function has changed.
Proof of Physical Injury
Further evidence of the fact that there is not always a physical injury with a TBI is the fact that the symptoms associated with TBI, as stated by the VA/DOD Clinical Practice Guidelines for Management of Concussion/mTBI are three in number. They are physical, cognitive and behavioral/emotional. Absent some radiographic evidence of actual physical injury, there is no way of telling whether or not there has been a physical injury to the brain or simply a change in function due to movement or some other disruption.
Physical Injury
As such John v. Im, if it is not going to be amended, should be limited to its literal holding: A clinical psychologist cannot express an opinion as to causation of a physical injury. However mild traumatic brain injury is not always a physical injury. If there is radiographic or other evidence of a physical injury then so be it. If a party is contending the testimony should be barred, then the burden is on that party to prove the existence of a physical injury. Absent radiographic or other such distinct evidence of a physical injury then the injury has to be presumed to be an alteration of function which does not have any physical injury.
In addition, such testimony on causation is admissible to the extent that mTBI is a mental disorder, as stated in DSM-5. Under the terms of Virginia Code § 54.1-3600, a psychologist can testify as to the diagnosis of a mental disorder, recognizing that part of the diagnosis is a determination of causation.
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