These exams must be done by a neuropsychologist who is a licensed clinical psychologist i.e. a health care provider. Rule 4:10 requires such. The exams are a number of tests. They may be given orally by the examiner. Some are computer based. They are to measure how the patient performs a number of tasks. Also they test memory and math ability. They test personality and other factors. The examiner is to put together all of the info and opine as to any impairment and the degree. Cross-examining these experts is addressed on another post.
A neuropsychologist has a doctorate in clinical psychology. Most of them have completed a specific post-doctoral training course in neuropsychology.
The areas of processing that they typically are testing are speed of processing, attention skills, visual perception, language processing, memory, learning, executive function, overall intellectual ability and emotional functioning.
Their testing is considered to be objective because it employs a psychometric approach. That psychometric approach is based upon a norm or what is considered to be normal and the person is measured against that. The problem with that analysis is that people who are either high-functioning or low-functioning are probably not fairly treated because the data is based upon the norm.
Neuropsych Exams-Six Rules
1. You must establish the baseline and then get the defense examiner to acknowledge it. The baseline is the person’s condition before the injury. The baseline is established by the following:
- Complete medical records.
- All psychiatric and psychological records.
- All school transcripts.
- Statements from family, co-workers and friends as to condition before the injury.
- Work history and records.
- Military service records.
- SAT, LSAT and other scores.
- The Weschler Intelligence Scales(IQ) in particular such subtests as vocabulary and pronunciation Keep in mind the plaintiff did not get any smarter because of the injury.
2.Normal is not normal for your client. Your client may have tested normal on many of the tests. The baseline shows your client is not normal now.
3. Malingering is not malingering. It is a lack of effort. The malingering tests the defense neuropsych will give are designed to make very easy things appear difficult to the plaintiff. Even people with a brain injury would do well on them. If the plaintiff does poorly that shows malingering per the defense. But these are not really malingering tests they are effort tests. They test if the person is giving full effort. The plaintiff may not give full effort because of sickness, pain, headache, medication, distractions, overstressed or the testing conditions are not appropriate. Lack of full effort means the tests are invalid. Therefore move to exclude the tests. Also point out how mysterious it is that the plaintiff can fail the effort tests but be normal on all others. That is inherently inconsistent.
4. Cognitive function can get worse after the injury stabilizes. The defense expert will say once the injury occurs the condition is static. Not so. The plaintiff is frequently suffering from a host of other conditions: pain, headaches, depression, PTSD, sleep disturbances, fatigue, anxiety. The worsening condition may not be caused by the organic injury but there are a host of other injuries at work that may cause regression. You have to look at the totality.
5. The plaintiff can get better after a brain injury. The typical pattern after a brain injury is a decrease in function, a plateauing effect , then some improvement but not back to the pre-injury level and then a further plateauing effect. You can show that pattern by having the client submit to a second battery of neuropsych testing before the defense exams. That will frequently show some improvement.
6. Practice effect may invalidate the test of the defense. If the defense tests took place too close in time to the plaintiff’s last test then the practice effect may invalidate the testing. Move to exclude.
Malingering
A tactic of these examiners is to testify that the plaintiff is malingering. In other words, the plaintiff is faking. Other terms that they use are that the plaintiff is seeking secondary gain. In addition they say the test results are due to somatic factors. Somatic means body. This is a suggestion that any problems the plaintiff is having are due to physical issues, not to a brain injury.
There are a number of decisions in Virginia and elsewhere stating that witnesses may not comment on whether another is telling the truth. The examiner is trying to do just that. That should not be allowed.
One thing you always want to look at is the number of malingering tests that the neuropsychologist gave. If they gave more than one, then you can pretty well determine what their focus is.
In regard to the defense examiner, it’s probably a good idea to ask in deposition about malingering. In particular, what percentage of people they test for validity and what percentage fail. In particular, if this plaintiff failed the validity testing, then that means that any other testing is invalid. That probably then excludes all of the neuropsychological testing because the witness should not be allowed to testify as to malingering/credibility issues.
Family History
Another issue that arises in these exams is the attempt by the defense to get info about family history of the plaintiff. Family history is claimed to be important because it may be that the plaintiff’s condition is genetic or hereditary. The primary objection to this is that those relatives are not parties to this suit. As a result their medical history is protected.
Neuropsychological Exams-Other Issues
The examiners who testify frequently for the defense are experienced witnesses. They know what the defense lawyer wants. They like to try to slip into their testimony statements such as “The test results are not consistent with a brain injury”. In addition they will try to testify that the test results are far worse than would be expected. In addition they say that the test results are invalid. All of those are really just attempts to say that the plaintiff is faking. Any statements that includes the words “consistent with” or “not consistent with” should be objected to. That is not the standard. The standard is a reasonable degree of probability.
Whether the test results are worse than what the examiner would have expected is of no import. In other words what he expects is of no account.
To allow the examiner to say that the test results are invalid is another way of saying the plaintiff is lying. That should be challenged.
Mild Traumatic Brain Injury
Some defense neuropsychologists maintain that a patient could never have a mild brain injury after a certain point in time. If that is what they believe, then it is critical to get that out of the defense examiner. What that means is that they could render their opinion based solely upon knowing how long the symptoms had lasted. You could probably have some fun with this defense examiner by reenacting the initial phone call from defense counsel. The examiner’s report would be based upon the information that the defense lawyer had given to the examiner within the first 20 seconds of the phone call i.e., that the symptoms had lasted more than that designated period of time.
Testimony
There are a number of cases dealing with neuropsychological testimony. The lead case is John v. Im, 263 Va. 315 (2002) which stated that an opinion concerning the causation of a particular physical human injury is a component of diagnosis which is a part of medicine and is not something that a neuropsychologist can address. O’Rourke v. Vuturo, 49 Va. App. 139, 638 S.E.2d 124 (Va. Ct. App. 2006) (Mental health experts permitted to testify regarding psychological injury); ITT Industries v. Taylor, Record No. 1297-06-3 (Va. Ct. App. Mar. 20, 2007) (Psychologist’s opinion properly limited to the cause of psychological impairment); Estate of Harvey v. Roanoke City Sheriff’s Office, 585 F. Supp. 2d 844 (W.D. Va. 2008) (Expert not a medical doctor and not qualified to render an expert opinion on proximate cause); Fitzgerald v. Commonwealth, 273 Va. 596, 643 S.E.2d 162 (Va. 2007) (Licensed professional counselor is authorized to diagnose recognized mental disorders); Rose v. Jaques, 268 Va. 137, 147, 597 S.E.2d 64 (2004) (Exclusion of expert testimony on malingering); Bitar v. Rahman, 272 Va. 130, 630 S.E.2d 317 (Va. 2006) (Exclusion of medical expert testimony based on “possibility” as speculative); Velasquez v. Commonwealth, 263 Va. 95, 104, 557 S.E.2d 213, 218 (2002) (Narrow exception to the holding of John v. Im that a sexual assault nurse is competent to provide expert testimony regarding the cause of injuries alleged in the context of an alleged sexual assault); Jenkins v. C & T Durham Trucking Co., No. 0381-22-1 (Va. Ct. App. Feb. 14, 2023) (Virginia Workers’ Compensation Commission is not bound by John v. Im.)
Cross-Examination
Cross-examination of these experts should be based on the rules set forth above.
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 neuropsych exam issues.
