RUSSELL M. BAUER, PH.D. JUNE 30, 2014 Forensic Neuropsychology in Personal Injury Cases I

Compensation for Mental Injury law in this area is called “tort” law in the case of civil proceedings governs compensation of individuals whose interests have been violated recognizes potential fault or negligence of injured party Neuropsychologists generally not concerned with liability; “damages” is the focus personal injury vs. worker’s compensation

Tort Law vs. Worker’s Compensation WC handled administratively; tort law handled judicially WC regulated by legislature; tort law by the courts WC compensates according to fixed injury schedule according to earning capacity; tort law is theoretically limitless (e.g., pain and suffering, loss of consort, etc.)

Worker’s Compensation designed to compensate injured workers for losses, incurred during the course of employment, in their wage- earning power actually the result of a different set of guidelines than “tort” law designed to allow workers to circumvent frequently used employer defenses:  contributory negligence  you assumed the risk  another employee (who can’t pay you salary and benefits) was responsible

Worker’s Compensation Criteria an injury or disability  affecting wage-earning capacity  facial disfigurement, loss of sexual potency doesn’t count arising out of or in the course of, employment  assumes causal relationship  positional risk (injury would not have occurred “but for employment”) which is “accidental”  some nonaccidents are compensable

Procedures for WC Claims Employee serves notice Medical examination Proceeding for Adjustment and Compensation  administrative hearing before hearing officer  once settled, claimant can’t take case to court for further action

Mental Injury Physical Trauma Causing Mental Injury Mental Stimulus Causing Physical Injury Mental Stimulus Causing Mental Injury

Key Elements of Tort Law act or omission + causation + fault + protected interest + damage = liability existence of duty owed the plaintiff by the defendant violation of duty by the defendant an injury “proximately caused” by the violation, and the injury is compensable

Duty “an obligation, to which the law will give recognition, to conform to a particular standard of conduct toward another” we have certain duties, for example, when we  Drive a car  Handle firearms  Maintain our homes  Etc.

Obligation Something you MUST do because of a law, rule, promise, etc. Not fulfilling obligation (violation) can be by act (commission) or by omission can be intentional or negligent negligence is “conduct which falls below the standard of care established by law for the protection of others against reasonable risk of harm ”

Proximate Cause given the actions of A, could one reasonably foresee the consequences that occurred? alternative: but for the actions/omissions of A, event/consequences would not have occurred most psychological theories have elaborate cause- effect chains courts will generally recognize only certain aspects in the chain of events as proximate causes

Compensable Damages an invasion of “legally protected interests” “feeling of harm” not sufficient; law must define interests as sufficiently important or worthy of protection to hold the person causing harm liable for damages major importance of neuropsychological testimony is in this area; extent of neuropsychological injury Compensatory damages: replace what is lost Punitive damages: punish offender as a deterrent for future action

Mental Injury and Tort Law reluctance to compensate “mental injuries” without some physical manifestation basic mental injury torts:  tort of intentional infliction (e.g., slander)  tort of negligent infliction (e.g., residents emotionally affected by flood damage) the “predisposed plaintiff” the “as they are” principle

Predisposed Plaintiff: Aggravation Castillo v. Young – plaintiff with TMJ injury and pre- existing TMJ condition from previous injury Physician testimony:  “There are patients – it's like a truck. If you rear end a truck that’s full of bricks, you’re probably [not] going to hurt your truck – you’re going to hurt yourself, not the truck. If you rear end a truck full of eggs, you’re more likely to do damage than if you rear end a truck full of bricks. Unfortunately I think in [Castillo’s] case, they rear-ended her being full of eggs. She was fragile.... Any time you’ve had injury to a joint that would cause fracture of that bone, there has to be consequence to the system, whether there [are] symptoms provoked at that time or not.” Eggshell jury instructions proposed (but denied):  There is evidence that the Plaintiff had broken her jaw in 1983 and experienced a disk displacement in her jaw prior to the December 20, 2000, accident. The Defendant(s) is liable only for any damages that you find to be proximately caused by the Defendants' negligence relating to the December 20, 2000, accident. If you cannot separate damages caused by the pre [sic] existing broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) are liable for all of those damages. Plaintiff awarded $13, Appealed to State Supreme Court, which opined that the eggshell jury instructions SHOULD have been given, and remanded the case for retrial

Issues in Evaluation potential examiner bias (in both directions) retrospective analysis of prior mental functioning often critically important issue in damages: can the individual function “as s/he was”? impact of mental/emotional reactions, some of which are, themselves, compensable effects of litigation, distortions, malingering

Definition of Mild TBI Traumatically induced physiological disruption of brain function At least one of the following: 1. any period of loss of consciousness 2. any loss of memory for events immediately before or after the accident 3. any alteration of mental state at the time of accident (e.g., feeling dazed, disoriented, or confused) 4. Focal neurological deficit(s) that may or may not be transient Exclusion Criteria: 1. loss of consciousness exceeding approximately 30 minutes 2. after 30 minutes, a GCS falling below post-traumatic amnesia (PTA) persisting longer than 24 hours American College of Rehabilitative Medicine, 1993

Common Case Scenario in “Mild Head Injury” minor MVA with no or questionable LOC, PTA, but some indication of possible orthopedic injury normal ED evaluation delayed development of “de novo” cognitive problem (e.g., memory, concentration difficulty) subsequent referral to a neurologist-neuropsychologist neuropsychological exam reveals abnormal neuropsychological or neuropsychiatric test findings indicative of “brain damage”

(JCEN, 19, )

Conclusions Severe long-term sequelae of mild TBI are rare (<10%) Mild TBI results in NP effect sizes that average less than.5 SD NP evals in MHT have low PPV Therefore, some NP evaluations lead to “false positive” diagnoses

Caveats (Bigler, 2001) The “lesion” is always larger than visualized Normal scans may not signify absence of pathology DOI scans may not be enough Long-term sequelae (e.g., accelerated aging)

“Noninjury” Contributors to Neuropsychological Impairment in MHI Adversarial patient-examiner relationship Exaggeration or poor effort  Impairment as communication  Frank malingering for gain; financial incentives  Factitious disorders Fatigue, pain, other physical factors Psychiatric disturbance (e.g., psychosis, anxiety, depression) Pre-existing factors affecting neuropsychological performance (e.g., learning disability, limited education) Occupational/life experience factors

Financial Incentives and Disability Binder & Rohling (AJP, 1996, 153, 7-10)  Meta-analytic review of financial incentives and symptoms  18 study groups, 2,353 subjects  Weighted mean effect size of difference between groups with and without financial incentives was 0.47  More late-onset symptoms in groups seeking compensation

Checks against False Positives: Consistency Analysis Consistency of results between/within domains Consistency with known syndromes  example: “hemi-anomia” Consistency with injury severity Consistency with other aspects of behavior  e.g. memory abilities during vs. apart from formal testing

Post-Concussion Syndrome

Post-Concussion Syndrome: DSM-IV Definition “acquired impairment in cognitive functioning, accompanied by specific neurobehavioral symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion” (LOC, PTA, etc.) Symptoms, cognition, balance

PCS: DSM-IV Criteria A Hx of head trauma that has caused significant cerebral concussion B Evidence from NP testing or quantified cognitive assessment of difficulty in attention or memory C Three (or more) of the following occur shortly after trauma and last at least 3 months:  easy fatigue  disordered sleep  headache  dizziness/vertigo  irritability or aggression with little/no provocation  anxiety, depression, or affective lability  changes in personality  apathy or lack of spontaneity

PCS: DSM-IV Criteria (cont’d) D. Symptoms begin after head trauma or else represent a worsening of pre-existing symptoms E. Significant impairment in social or occupational function; decline from previous functional level F. Do not meet criteria for dementia and are not better accounted for by another mental disorder

PCS-Like Complaints of NP Dysfunction Common Nonspecific Potentially related to non-neurological factors (anxiety, depression, fatigue, stress) Correlate better with distress than with objective indicators of CNS injury Easy to feign or exaggerate

Complaints as “Evidence” In the absence of objective neuro-psychological deficit, complaints are often taken to indicate the existence of occult disease There is a difference between symptoms (subjective evidence) and signs (objective evidence) of illness Symptom reports subject to cognitive distortions and attributional processes

Problems with Using Complaints as Evidence of MHI Mittenberg et al. (1992, 1997): “expectation as etiology”  ‘imaginary concussion’ produces symptom complaint cluster identical to that reported by patients with ‘real’ head injury  patients with minor TBI significantly underestimate degree of pre-injury problems

Major PCS Symptoms “Imaginary concussion” produces a pattern of symptom reports virtually identical to that seen after MHI

MHT patients significantly underestimate preinjury symptoms compared to a noninjured control group

Conclusions You don’t have to have had a head injury to have post-concussion symptoms Once something bad has happened to you, you tend to attribute more of your problems to it Complaints reflect the subjective, not necessarily the objective, consequences of MTBI

Implications for Understanding PCS 5-8% of MHI patients have persistent deficits Physiogenic causes likely operative in the first 1-3 months Psychogenic causes important (though probably not exclusively so) thereafter Complaints have low specificity for MHI Baserate issues important Attributional processes important Suggests need for a scientific approach to assessing persistent complaints after MHT