THERE has been a dramatic increase in suits in which plaintiffs claim significant brain damage with the only supporting expert testimony being that of a psychologist. Although these alleged mild brain injury cases have normal neurological test results, psychologists nonetheless testify to having detected brain damage through the use of neuropsychological tests. Many of the tests have long, impressive names, and the psychologists have impressive credentials. This combination, even when the testifying psychologists are enthusiastic and sincere, can confuse and perplex even the most intelligent attorney.
It need not be so. Attorneys, particularly defense counsel, should understand the basic tenets of neuropsychological testing so they can defend against unreasonable, biased or even fraudulent expert testimony. Insurers and defense counsel sometimes are astonished to realize that a minor injury has emerged as a massive claim involving exorbitant special damages, long-term disability, psychological rehabilitation and huge exposure for general damages.
The evolution of a minor into a massive psychological claim is frequently the end result of a testifying psychologist who asserts that neuropsychological testing has proved brain damage. The defense attorney must learn to analyze this evidence and explain it to the fact finder in order to disclose its weak underpinnings.
There is a wide ranging over-concern over whether there is brain damage, as opposed to its effects on the lives of individual people. Whether there is brain damage is largely a non-issue in mild brain injury cases; the real issue is whether there was enough of an injury to the brain or anything else to affect the life of the patient. The most common cause of brain damage and atrophy of the brain is to be born and to continue living. Don't be misled by sensationalism.
PSYCHOLOGICAL TESTS FOR MILD BRAIN INJURY
Some common tests psychologists use in mild brain injury evaluations are (1) neuropsychological tests, (2) memory tests, (3) intelligence tests and (4) personality tests. The most common neuropsychological test battery is the Halstead-Reitan, which will be the focus of much of this article.(1) Another battery of tests, called the Luria-Nebraska, is less widely used in neuropsychological evaluations,(2) but most statements in this article also apply to the Luria-Nebraska.
Most psychologists use portions of the Halstead-Reitan battery in conjunction with other types of psychological tests when evaluating mild brain injury patients. In other words, unique test batteries are the rule, rather than a standard test battery.(3)
A. The Metamorphosis
Neuropsychological tests were developed primarily to aid in the diagnosis and treatment of patients with neurologically valid brain injuries, but recently they have come to be used increasingly to detect brain injury in the absence of neurological evidence, frequently in connection with compensation claims. When neuropsychological test results are used as the primary or the only evidence of brain injury, defense counsel should know the limitations of such evidence.(4)
B. State of the Art
The field of clinical neuropsychology is filled with conjecture and hypothesis, diversity in methods, serious problems in classification and other similar features typical of fledgling scientific fields.(5) Most …