The neuropsychologist in a mild traumatic brain injury case: how to conduct the direct examination.

The trial of a mild traumatic brain injury case is complex. By definition, mild traumatic brain injury presents the trial attorney with a client who has subjective complaints regarding attention, concentration, and memory, yet few, if any, objective findings on standard neurodiagnostic studies or neurological examination. Mild traumatic brain injury is a

traumatically induced physiological disruption of brain function as manifested by at least one of the following: any period of loss of consciousness; any loss of memory for events immediately before or after the accident; any alteration in mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused)- and focal neurological deficit(s) that may or may not be transient; but where the severity of the injury does not exceed the following:

* Loss of consciousness for approximately thirty minutes or less;

* After thirty minutes, an initial Glasgow Coma Scale (gcs) of 13-15; and * Post-traumatic amnesia (pta), not greater than 24 hours.(1)

To document the subjective complaints of the client, it is necessary to retain a qualified neuropsychologist who can objectively document the client's deficits through neuropsychological testing. Clinical neuropsychology is an applied science concerned with the behavioral expression of brain dysfunction, studying the relationship between the brain and behavior.(2)

Neuropsychologists employ tests "designed to evaluate a wide variety of cognitive functions and behaviors, which are dependent on the structural and functional integrity of the brain."(3) In conjunction with these tests, the expert correlates the tests' findings with the patient's background information, including a "patient's academic, vocational, medical, and psychiatric records, to establish the pre-morbid . . ." or pre-accident baseline level.(4) With this baseline, the neuropsychologist can understand how the patient's personality, cognitive functioning, and social and emotional behavior have been altered as a result of an incident or trauma.

Because the field is highly complex, the neuropsychologist's testimony must be well planned to ensure that jurors understand the subject matter. This article presents a sample direct examination of a neuropsychologist designed to help jurors do that.

Qualifications

Because neuropsychologists do not hold medical degrees, the defense will argue that they are not qualified to render medical opinions as to the diagnosis or the etiology of any abnormalities found. Although most states permit neuropsychologists to testify with regard to the diagnosis of traumatic brain injury and its causal relationship to a traumatic event, not afl states permit this.(5) Recently, it took action(6) by the Georgia legislature to overrule a Georgia Supreme Court decision that prohibited a neuropsychologist from rendering these opinions.(7) So, it is essential that the trial attorney research the law of a jurisdiction to determine whether neuropsychologists can provide these opinions. It is also crucial for plaintiffs to retain highly qualified neuropsychologists. [See the sidebar on page 68.]

When a witness is called to testify, the jury needs three critical pieces of information: (1) who the witness is, (2) the witness's expertise is, and (3) why the witness is there. Plaintiffs should immediately address these questions to give jurors this information in advance of any challenge about qualifications. The questioning could begin as follows:

Q. What is your full name?

Q. What is your profession or your specialty?

Q. What is neuropsychology?

Q. Are you Ms. Jones's treating neuropsychologist and did you treat her for the injuries she suffered as a result of the motor vehicle crash?

Q. Are you prepared to provide us with your opinion as to what injuries she suffered in the crash as well as your expert opinion as to what permanent problems she will continue to experience as a result of the injuries?

Q. Before we hear your opinions, I would like you to provide this jury with your qualifications.

This introduction provides a framework for jurors to understand who the expert is, what his or her expertise is, and what testimony they can expect to hear. Perhaps more important, the introduction gives a framework for the jury's understanding that the plaintiff has suffered permanent residual effects as a result of the trauma.

Voir dire of the neuropsychologist's qualifications should be thorough. It is a mistake to rush through the qualifications to reach the expert's opinions and conclusions. There should be detailed questioning on the most noteworthy aspects of the expert's qualifications.

Nothing is more ineffectual than the wind-up doll method of questioning on qualifications, where the expert provides his or her entire qualifications in response to one question asking for educational background. A 10-minute answer in response to one question leaves the jury with the impression that this expert has testified often, and may also result in loss of the jury's attention.

Jurors must understand that as a neuropsychologist, the expert treats people with traumatic brain injury every day. Since the defense rarely retains a neuropsychologist, relying instead on the testimony of a neurologist, neurosurgeon, or psychiatrist, it is important to show that neuropsychologists' referrals come from these various physicians. In contrast, and also to be highlighted, cross-examination of defense experts often will reveal that they have little experience in treating people who have sustained traumatic brain injury.

Opinions

After the neuropsychologist has been qualified, it is time to present the expert's opinions. The traditional method used develops the following pattern: (1) history; (2) examination; (3) testing; (4) review of diagnostic studies; (5) preliminary impression or diagnosis; (6) treatment, if provided; (7) final diagnoses; (8) causation; (9) prognosis.

The weakness in this method, particularly in the context of traumatic brain injury, is that the expert first provides the basis for the opinions and later testifies as to those opinions. But it is more effective to advise the jury initially of the expert's opinions as to diagnosis and causation. That way there is a framework for the jury to understand the history and the abnormal findings.

After the witness is qualified to provide expert testimony, the attorney should proceed immediately to the heart of the opinions:

Q. Will you please provide us with your expert opinion, based on a reasonable degree of neuropsychological certainty, as to what injuries Ms. Jones suffered as a result of the automobile crash.

Q. You indicated that she suffered a mild traumatic brain injury. Would you please define and explain for us what mild traumatic brain injury is?

This questioning allows the jury to know from the start that it is the neuropsychologist's opinion that the client suffered a traumatic brain injury as a result of the accident.

Next, the neuropsychologist should explain what that diagnosis means. Rather than referring to the injury in terms of Ms. Jones, the expert should give a detailed explanation of mild traumatic brain injury in a general context, explaining what residuals result from the injury That way, at the conclusion of this part of the testimony, the jury has a full understanding of the malady and its residual problems. So, when the expert reviews Ms. Jones's history and findings, it is in a familiar context for the jury.

The next question is critical:

Q. Would you please explain for us how the brain functions?

Jurors must be given an anatomy lesson so they can understand the functions of the different areas of the brain, what each brain lobe does, what it controls, and what happens when it is injured. Because the testimony of the plaintiff's neuropsychologist will eventually be compared to that of the defendant's expert, it is necessary that the jury feel comfortable with the knowledge that the plaintiff's neuropsychologist is qualified to discuss brain injury.

Brain Anatomy

Not only must jurors become familiar with the anatomy of the brain but they must also feel that plaintiff's expert thoroughly understands the anatomy of the brain, how it works, and what happens when it is injured. For example, if the client has suffered a left frontal lobe injury, it is important to discuss generally what the function of the frontal lobe is, how it can be injured, and what the residual symptoms are when it is injured.

The mechanism of injury must be clearly established. The necessity for this is particularly critical where the impact is mild and the plaintiff did not lose consciousness or did not strike his or her head.

Q. Is it necessary that a person lose consciousness to sustain a traumatic brain injury?

Q. Is it necessary that a person strike his or her head in order to suffer a traumatic brain injury?

Q. What is the so-called shaken baby syndrome?

Most jurors are familiar with this syndrome, where a baby can suffer brain injury as a result of its head being violently shaken back and forth. The jury can appreciate that - like a baby's head - an adult's head can suffer traumatic injury simply by being whipped forward and backward in a car crash.

The questioning could continue:

Q. Would you please explain to us how the brain is injured in a rear-end crash?

In a case with little or no impact, a neuropsychologist must explain the biomechanics of traumatic brain injury and the lack of necessity for severe impact. Where all diagnostic studies arc negative, the defense will surely argue that the minimal impact and the lack of property damage show that there was not enough force to cause brain injury.

It is essential to directly confront this issue. Although having testimony from a biomechanical engineer can be helpful, the issue should still be addressed by the neuropsychologist:

Q. For a person to sustain a mild traumatic brain injury, is it necessary that there be a great force of impact?

Q. Would you please explain the biomechanics of a mild injury, that is, how the brain is injured in a collision and why the brain can be injured in a minimal impact collision?

Unfortunately, the terms "mild" and "moderate" brain injury do not accurately reflect the true consequences of these injuries. Although an injury may be classified as "mild," its symptoms or residuals can hardly be described as such. However, on cross-examination defense counsel usually uses the term "mild" to signify an insignificant insult or injury.

Q. You have diagnosed that Ms. Jones suffered a mild traumatic brain injury. Can you explain what you mean by "mild"?

After this description, there should be an explanation of how the diagnosis was reached. A detailed explanation of neuropsychological testing is required in order to answer any questions the jury might have.

Q. How does a neuropsychologist make a diagnosis of traumatic brain injury?

Q. You mentioned neuropsychological tests? What are these tests?

Q. Will you describe how these tests are validated?

Q. Are these tests objective?

The validity of the testing relies on the patient's effort. Because of this, the issue of malingering or faking is always at issue and must be addressed. "The definitive diagnosis of malingering can only be established by actual confession of malingering by the patient or observation of the patient performing an act that he or she claimed was impossible and a conscious element of deception is thought to be more likely than not."(8)

Clinically, determining whether there is a functional component to the patient's symptoms or the patient is malingering requires that the neuropsychologist examine

* evidence of inconsistency in the history or the examination;

* the likelihood that the set of symptoms and complaints the patient brings makes medical sense (that is, fits a reasonable disease pattern);

* the patient's present situation, including personal and social history and emotional predisposition; and

* the patient's emotional reactions to the subjective complaints.(9)

Additionally, there are a number of tests that can be given if a patient's motivations or complaints are suspect.(10) The Minnesota Multiphasic Personality Inventory is but one of a number of tests that can validate the patient's effort to faithfully perform the test. This test includes scales that have been created to validate effort.(11)

In scoring the tests, the neuropsychologist expects to see consistency in the answers. Deficits in a certain area should show up consistently across the wide spectrum of tests administered. Inconsistent results may call into question the validity of the patient's effort to fairly and accurately complete the tests. Recently, researchers questioned the ability of seasoned neuropsychologists to distinguish between malingerers and truly injured patients.(12) The researchers concluded that to detect malingering it is necessary that a patient's subjective and objective findings be examined side by side. This area should be addressed during the expert's testimony.

Q. Can a patient fake or intentionally attempt to do poorly on neuropsychological testing?

Q. When a patient intentionally does poorly, can the neuropsychologist detect this lack of effort?

Q. Can you please explain to us how this is done?

Q. Will you explain to us how a neuropsychologist can validate that the patient gave his or her best effort to complete the test?

Details of the Case

Now, it is time to discuss the specifics of the case. The expert has already testified that Ms. Jones suffered a traumatic brain injury as a result of the car collision. The basis of that opinion must be explored in detail.

Q. You have testified that Ms. Jones suffered a traumatic brain injury as a result of this car crash. Would you please give us the basis of your opinion.

A. My opinion that she suffered a traumatic brain injury is based on the following: the history provided by the client and significant others, my review of the medical records, the results of my neuropsychological testing, neurodiagnostic studies, and m;, knowledge of the authoritative literature in the field.

The expert can go through the elements listed above and outline for the jury the significant findings in each. When the neuropsychologist discusses that Ms. Jones has problems with attention, concentration, and memory, the jury, as a result of the expert's prior testimony, understands that attention, concentration, and memory deficits are hallmarks of mild traumatic brain injury. If the direct examination simply began with the history - before the neuropsychologist gave an opinion about the injuries suffered - the jury would have no framework for understanding these complaints.

In outlining the plaintiff's history, the neuropsychologist should highlight afl the pertinent information consistent with traumatic brain injury. If any of the history appears to be inconsistent, the attorney should raise the issue so the neuropsychologist may explain.

It is effective if the expert takes a history not only from the plaintiff but also from his or her family and any others familiar with the pre-morbid history. Because most defense experts will only take a history from the plaintiff, the plaintiff's neuropsychologist will appear more thorough if a history is also obtained from these other sources. Also, the neuropsychologist's exploration of plaintiff's history before the collision will better reveal the changes it caused.

Similarly, the neuropsychologist should provide a review of the medical records, explaining their significance. In virtually every case, some medical records are not helpful to the plaintiff's case. These records should be addressed directly, and the expert should offer an explanation.

In most of these cases, neurodiagnostic tests such as MRIs and CT scans are negative. It is important for the jury to understand that these tests are not sophisticated enough to diagnose mild traumatic brain injury. There is more than sufficient authoritative literature to support this opinion.

The neuropsychologist should be asked whether neuropsychological tests were administered to the plaintiff. Should the jury hear about every test administered, what the test is designed to show, and the result of the testing? Perhaps not. First many of these tests seem silly or absurd or so complex that a normal person could not pass them. One of the most widely accepted tests is Trail Making Test Part B. It requires the subject to connect, in order, numbers and letters such as 1 to A to 2 to B, to 3 to C, reminiscent of children's games of connect the dots. Standing alone, these tests seem absurdly easy or totally irrelevant to the issue of whether one suffered a brain injury. Other tests such as the Rey-Osterreith Complex Figure Test are so complex that a jury will conclude that the test is impossible and that because they believe they would not be able to answer the questions and are not brain injured, the test cannot be valid. Second, some of these tests are so complex that to describe them all in detail might bore jurors.

One question always posed on cross-examination is "How do you know that the results of the neuropsychological tests would not have been the same if they had been administered before the accident?" This issue must be addressed.

Q. You have indicated that test results show that Ms. Jones has suffered various cognitive abnormalities consistent with traumatic brain injury How do you know that she would not have scored similarly if these tests had been administered before the car collision?

Q. Assuming that Ms. Jones had not been involved in this traumatic event, would you have expected that she would have had the deficits you have found based on your review of her pre-accident school, medical, and vocational records?

If, however, plaintiffs counsel intends to delve into the individual neuropsychological tests, the tests should be blown up on poster board and a full explanation of them provided. Counsel should ask the neuropsychologist questions that the jury might pose: "If I can't draw the Rey-Osterreith diagram, does that mean I am brain damaged?" or "What does connecting dots have to do with diagnosing brain injuries?" Citations to journals are also helpful in validating these tests, and parts of the journals used by the neuropsychologist should also be blown up so the jury can see that in fact there are published works validating these tests.

Rather than go into each of the tests, it is more effective to simply summarize how the tests are validated, the purpose of the tests, and the results.

Q. Did you administer neuropsychological tests to Ms. Jones?

Q. Did the tests show abnormalities?

Q. What abnormalities?

Q. Are these abnormalities consistent with traumatic brain injury?

Q. What areas of the brain are now injured?

Q. Did you see any inconsistencies in the testing that would lead you to believe that Ms. Jones intentionally faked any of the test results?

Q. Did you administer any neuropsychological tests designed to detect faking or malingering?

Q. Did those tests reveal that the plaintiff was truthful or faking?

Crucial Expert

Plaintiff's counsel should be aware that there is a school of thought, led by David Faust, a Ph.D., and Jay Ziskin, a lawyer and a Ph.D., that discredits the competence of psychiatrists or neuropsychologists to offer reliable, valid psychiatric or neuropsychological expert forensic testimony.(13) Although it is not the intent of this article to explore or discuss in detail the opinions of Faust and Ziskin, it is important to recognize that this position exists and that its proponents claim it is supported by scientific evidence.

This position, of course, has been attacked by more mainstream neuropsychologists and psychiatrists. After the publication of Faust and Ziskin's three-volume text(14) and follow-up article in Science magazine,(15) this school came under attack by Joseph Matarazzo in his 1990 presidential address to the American Psychological Association.(16)

On direct examination counsel should not confront this issue. Rather, the plaintiff's neuropsychologist should be prepared to address it if confronted with it on cross-examination.

Typically, when trying one of these cases, the only objective proof of injury is found on standardized neuropsychological testing.

Plaintiff's counsel must retain the best neuropsychologist available. Because of the complexity of the subject matter, the material must be presented to the jury in an understandable fashion. Jurors must feel comfortable with the knowledge that the plaintiff's neuropsychologist is well trained and that the opinions provided are valid.

Preparing and presenting a case are labor intensive and expensive. Counsel must be prepared to spend the time and money necessary to properly represent these litigants, long neglected by both the medical community and society at large. Careful and thorough preparation provides the only hope of fair compensation for those who have suffered these injuries.

Notes

(1) Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine, Definition of Mild Traumatic Brain Injury, 8 J. HEAD TRAUMA REHABILITATION 86 (1993). (2) ROBERT J. SBORDONE, NEUROPSYCHOLOGY FOR THE ATTORNEY 1 (1991); MURIEL DEUTSCH LEZAK, NEUROPSYCHOLOGY ASSESSMENT 7 (1983). (3) SBORDONE, supra note 2, at 1. (4) Id. (5) Id. (6) GA. CODE ANN. [sections]43-39-1 (Michie 1994). (7) Chandler Exterminators, Inc. v. Morris, 416 S.E.2d 277 (Ga. 1992), amended, 92 Fulton County D. Rep. 1083 (Ga. 1992), and superseded by statute as stated in Drake v. LaRue Constr. Co., 451 S.e.2d 792 (Ga. App. 1994) and reconsid. denied (Dec. 5, 1994). (8) Ronald M. Ruff et al., Malingering and Malingering Like Aspects of Mild Closed Head Injury, 8 J. HEAD TRAUMA REHABILITATION 60, 70 (1993). (9) LEZAK, supra note 2, at 615-22. (10) Id. (11) ARTHUR C. ROBERTS, LITIGATING HEAD TRAUMA CASES [sections]11.7 (1991); Robert Heaton et al., Prospects for Faking Believable Deficits on Neuropsychological Testing, 46 J. CONSULTING & CLINICAL PSYCHOL. 892 (1978). (12) Ruff et al., supra note 8, at 69. (13) DAVID FAUST & JAY ZISKIN, COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY (4th ed. 1988). (14) Id. (15) David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 SCIENCE 31 (1988). (16) Joseph D. Matarazzo, Psychological Assessment Versus Psychological Testing: Validation from Binet to the School, Clinic, and Courtroom, 45 AM. PSYCHOLOGIST 999, 1013 (1990).

Selecting an Expert Neuropsychologist

Selecting a neuropsychologist is much like selecting an expert in any other field. The expert should have excellent credentials, be well trained, have clinical experience in the field, and make a good witness.

A clinical neuropsychologist is a professional psychologist who applies principles of assessment and intervention based on the scientific study of human behavior as it relates to normal and abnormal functioning of the central nervous system.(1) Since the field of neuropsychology is relatively new, there is no separate or distinct licensure for neuropsychologists. Neuropsychologists, like all other psychologists, obtain their doctorates and licensure in psychology. Nothing prevents a psychologist from holding himself or herself out publicly as a neuropsychologist.

At present, a number of boards confer certification for neuropsychologists. The American Board of Professional Psychology, which has nine associated board subspecialities, recognizes only the American Board of Clinical Neuropsychology(2) (ABCN) in the field of neuropsychology. ABCN was established in 1981.

The American Board of Professional Neuropsychology,established in the 1980s, also certifies clinical neuropsychologists.(3)

Since this boards are only 10 to 15 years old, many well-qualified neuropsychologists are not board certified. The requirements for neuropsychological board accreditation provide excellent guidelines for choosing an expert neuropsychologist.

Attorneys should select a neuropsychologist who has received his or her doctoral degree in an accredited psychology program and has done post-doctoral work in the field of neuropsychology. Besides post-doctoral training, to become certified, the American Board of Clinical Neuropsychology requires five years of post-doctoral professional experience in psychology; three or more years of clinical neuropsychological experience, defined as including the equivalent of at least one year of full-time supervised clinical neuropsychology experience at the post-doctoral level; and at least one year of additional experience as a clinical neuropsychologist or three years of subsequent clinical experience in treating brain injured clients.(4)

If the expert is being selected for purposes of examination and testimony, it is imperative that the neuropsychologist make a good witness. The field is complex, especially for the layperson, and the neuropsychologist must be able to give testimony so that jurors will understand it.

Before selecting an expert, the trial attorney should meet and interview the neuropsychologist and also check references. In addition, as with medical experts, counsel should find out whether the neuropsychologist is affiliated with teaching hospitals and has published in the field. Counsel should obtain copies of the neuropsychologist's curriculum vitae and books and articles to ensure that they do not conflict with counsel's theory of the case.

Retaining the right expert to document the client's deficits requires hard work and preparation. A thorough investigation of a neuropsychologist's education, training, and clinical experience as well as his or her ability to clearly present complex information should ensure selection of a highly qualified expert.

Notes

(1) Definition of a Clinical Neuropsychologist, 3 CLIN. NEUROPSYCHOL. 22 (1989). (2) American Board of Clinical Neuropsychology, 480 Med Inn Bldg., Box 0840, University of Michigan Hospitals, 1500 East Medical Center Dr., Ann Arbor, MI 48109. (3) American Board of Professional Neuropsychology, c/o Michael J. Raymond, Executive Director, The John Heinz Institute of Rehabilitation Medicine, 150 Mundy St., Wilkes Barre, PA 18702. (4) See ROBERT J. SBORDONE, NEUROPSYCHOLOGY FOR THE ATTORNEY (1991).