Neuropsychological Exams

Brien Roche

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.

Neuropsych Exams-Establishing the Baseline

The examiner should have a baseline.  The baseline is the person’s condition before the injury.  In order to know that, you need 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.

With that basic info the testing may begin.

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.  For instance the order should call for the “raw data”.  The raw data is the questions posed and the answers given. However the defense will object as the raw data is confidential and proprietary.  That can be addressed by a protective order.  That raw data is critical.  Without it there is no effective way to cross-examine.  Without the questions and answers the examiner expresses opinions. They are based upon test results. However no one knows what the real results are.

The suggestion that the raw data should be released to the plaintiff’s examiner is not enough.  That examiner is not the one conducting the cross of the expert.  It must be released to counsel. Counsel must review it and conduct cross.

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.

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 proteted.  

The Length of the Exam

This is something that should be addressed in 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.

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.  

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.