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The Neuropsychologist in Minor Brain Injury Cases

by Kenneth I. Kolpan, Esq.

It was more than fifteen years ago that a local Massachusetts woman unable to obtain services for her daughter who had sustained a closed head injury in a motor vehicle accident founded what became the National Head Injury Foundation and has recently been renamed the Brain Injury Association. Though for years the medical community had studied and reported on the neurological sequelae from closed head injuries, litigation of these injuries had not seen the light of day. While emergency personnel and neurosurgeons were saving the lives of people who sustained brain injury even after extensive duration of coma, these individuals were considered "recovered" since they were no longer critical. They, like the local Massachusetts teenager, were returned to their communities and schools to resume their lives but they had not recovered: they were different. Teachers and families who knew them before their injury observed changes in mood, memory and cognition. A "Silent Epidemic" was growing (according to the National Head Injury Foundation)

Medical research was replete with case studies of persons who survived after sustaining comas of hours, days and weeks; from the cases of Karen Anne Quinlan, Paul Brophy and others the public became aware that there were brain damaged patients living for long periods of time in what then was referred to as "persistent vegetative state". This population was extensively researched and coma scales were developed, such as the Los Rancho Amigos and Glasgow Coma Scale, to measure the extent of coma and to predict the likely outcome. Brain injuries were described along a continuum from minor (or mild), moderate to severe. Attorneys and others had the mistaken impression that only those with deep and long comas had permanent significant brain injury and disability. Yet, those familiar with the long term survival of persons who sustained mild head injuries (later referred as mild traumatic brain injuries) soon realized that "there was nothing minor about a mild head injury." CT scan, EEG, x-ray were not the only way to assess the impact of a brain injury. (Early research had already discussed the fact that brain injury could occur on a microscopic level that would not be detected on certain diagnostic tests)

Persons who had sustained short periods of unconsciousness or no loss of consciousness were having significant cognitive deficits. Studies in the 1980's, in eluding those of Rebecca Rimel and others of the Medical College of Virginia, reported that persons with brief periods of unconsciousness such as 30 minutes or less, were exhibiting problems months after their injury including memory loss and inability to return to work. Though the severity or duration of their symptoms appeared related to the duration of unconsciousness, even those with brief loss of consciousness were reporting problems.

Rehabilitation programs and facilities throughout the country were now devoted to the diagnosis and treatment of persons with closed head injury. Clinical teams comprised of occupational, speech and physical therapists, physiatrists (specializing in physical medicine), neurologists, neuropsychiatrists, recreation therapists, psychologists as well as neuropsychologists were brought together in rehabilitation hospitals and community programs to address this population. Programs of cognitive remediation or retraining were established.

Despite the effects a mild brain injury was having on injured persons, it was difficult to get them fair compensation for their losses. Attorneys were confounded when an injured client came to the office with significant cognitive problems of concentration, attention, memory but diagnostic tests such as EEG, skull x-ray and CT scan were normal. Some lawyers failed to recognize what rehabilitation medicine had already found: serious and long term neurological sequelae can occur even with normal findings on some objective diagnostic tests. Neuropsychological testing was key not only to brain injury rehabilitation but it would be beneficial to brain injury litigation.

Within the field of psychology there are specialists with training, education and experience in selecting, administering and interpreting series of tests which are designed to measure different functions of the brain. Their education usually includes extensive neuroanatomy. Theses specialists are further delineated by those who focus their practice on evaluating persons with traumatic brain injury (as compared to persons who have cognitive problems from aging, disease, tumors, etc.)

Neuropsychological evaluation involves interviews with the patient, significant others, review of pertinent documents and testing. Neuropsychologists select among various test batteries, a regimen which they administer to a patient to assess their current cognitive functioning. Tests cover reading comprehension, memory (both long and short term), visual spatial relations, visual and auditory memory, shifting sets, abstraction, dexterity, concentration, attention, distractibility and other areas. Personality tests (such as the MMPI), projective tests, self reporting assessments are also part of the evaluation. The neuropsychologist administers scales measuring malingering, faking, embellishment, emotional state (e.g. Beck's Depression Inventory). Intelligence tests document the patient's current Intelligence Quotient (IQ) and whether there is significant discrepancy among the sub-test scores (known as intratest scatter). Testing may take several hours over many days to complete.

Persons with traumatic brain injury may have preserved isles of competence and still have significant cognitive problems in certain areas of brain function. Interpretation, not just calculation, of test scores is paramount. A subject may score within the normal range (i.e. within one standard deviation of the norm) on memory testing and reading comprehension which, in the abstract, indicates some sense of normalcy about the patient. When viewed in the context of other test scores or, more importantly, when compared to the background of the injured person, a score within the normal range may represent a significant drop of cognitive function for this particular person.

In order to assess plaintiff with a traumatic brain injury, the neuropsychologist must have an extensive picture of the plaintiff's premorbid personality and abilities. Neuropsychological evaluation is not limited to testing an injured plaintiff but involves review of preexisting test scores (including educational tests), educational and medical records, employment evaluations, psychological treatment accounts and interviews with "before and after" witnesses such as spouses and family members, fellow workers and teachers. (There are published reports that the brain injured person underreports their symptoms when compared to other witnesses.) Lawyers must provide the neuropsychologist with all extensive records covering an injured party's preaccident life as well as information including accident reports, depositions, interrogatories, diaries describing the plaintiff's former and current level of functioning in areas of work, education, family, recreation, etc. Interviews with significant witnesses should be arranged with the neuropsychologist to give the evaluator a complete picture of the plaintiff's premorbid abilities and potential. The test results, which are usually repeated within the first two years, are interpreted within this framework. The attorney's challenge is how to present this information in a persuasive fashion.

This author was reminded of the difficulty years ago before a closed head injury trial involving a twenty nine year old school teacher who had sustained a minor head injury when she was struck on the head by a manually operated garage door. She returned to work shortly after the incident, but had great difficulty answering simple math questions that her elementary school students asked her.

I was explaining to the trial judge in chambers that my experts included a physiatrist and neuropsychologist. The judge asked detailed questions about their background and in particular the nature of their respective professions. I realized that I had to spend a substantial portion of direct examination of the physiatrist and neuropsychologist on educating the jury about the specialty of physiatry and neuropsychology. Despite the growth of brain injury rehabilitation and publicity regarding the devastating consequences resulting from traumatic brain injury, the same type of detailed explanation is still required in each case (whether before a jury, judge, adjuster or defense counsel.)

After the examination covers the profession, working closely with the neuropsychologist, the attorney must carve out the significant findings from the plethora of test results. As stated above, it is common that a brain injured plaintiff would do well (i.e. score within the expected range given the preaccident information) on certain cognitive tests and while demonstrating deficits on other tests. Blowups of the tests and their purpose, expected score range and plaintiff scores can help illustrate these points.

A neuropsychologist must be prepared to deal with the defenses in a minor brain injury case such as preexisting abuse problems, learning disabilities, history of familial seizures, special education determinations, same level of functioning, absence of physical manifestations of injury, claimed malingering and exaggeration, hypochondriacalism, no loss of consciousness, etc. The expert must be ready not only to defend the current testing and interpretation but also the profession. Most recently, the profession of neuropsychology is under attack by some of its own members who, as defense experts, debunk the testing and, sometimes, the profession itself.

An attorney representing a person with a minor brain injury must have a full understanding of the tenets of neuropsychology, the reliability and validity of the neuropsychological tests and work with neuropsychologist experts who are well credentialed with extensive experience in evaluating persons with traumatic brain injury. Depending on the neuropsychologist's background, test findings and case circumstances, and with the attorney providing the neuropsychologist with comprehensive records and information regarding the plaintiff, the neuropsychologist may render an opinion regarding diagnosis of brain injury, the sequelae of the injury, the permanence of the disability and its effect on the plaintiff s employability (and/or education). With proper case selection, preparation and presentation, attorneys can zealously advocate for persons with minor traumatic brain injury to receive just compensation.

Published with permission of Massachusetts Academy of Trial Attorneys