Forensic Neuropsychology in Personal Injury Cases I Russell M. Bauer, Ph.D. July 3,2008
Preview:
Citation preview
- Slide 1
- Forensic Neuropsychology in Personal Injury Cases I Russell M.
Bauer, Ph.D. July 3,2008
- Slide 2
- Compensation for Mental Injury v law in this area is called
tort law in the case of civil proceedings v governs compensation of
individuals whose interests have been violated v recognizes
potential fault or negligence of injured party v personal injury
vs. workers compensation
- Slide 3
- Tort Law vs. Workers Compensation v WC handled
administratively; tort law handled judicially v WC regulated by
legislature; tort law by the courts v 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.)
- Slide 4
- Workers Compensation v designed to compensate injured workers
for losses, incurred during the course of employment, in their
wage-earning power v actually the result of a different set of
guidelines than tort law v designed to allow workers to circumvent
frequently used employer defenses: contributory negligence you
assumed the risk another employee (who cant pay you salary and
benefits) was responsible
- Slide 5
- Workers Compensation Criteria v an injury or disability
affecting wage-earning capacity facial disfigurement, loss of
sexual potency doesnt count v arising out of or in the course of,
employment assumes causal relationship positional risk (injury
would not have occurred but for employment) v which is accidental
some nonaccidents are compensable
- Slide 6
- Procedures for WC Claims v Employee serves notice v Medical
examination v Proceeding for Adjustment and Compensation
administrative hearing before hearing officer once settled,
claimant cant take case to court for further action
- Slide 7
- Mental Injury v Physical Trauma Causing Mental Injury v Mental
Stimulus Causing Physical Injury v Mental Stimulus Causing Mental
Injury
- Slide 8
- Elements of Tort Law v act or omission + causation + fault +
protected interest + damage = liability v existence of duty owed
the plaintiff by the defendant v Violation of duty by the defendant
v an injury proximately caused by the violation, and v the injury
is compensable
- Slide 9
- Duty v an obligation, to which the law will give recognition,
to conform to a particular standard of conduct toward another
- Slide 10
- Obligation v violation can be by act or by omission v 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
- Slide 11
- Proximate Cause v given the actions of A, could one reasonably
foresee the consequences that occurred? v most psychological
theories have elaborate cause-effect chains v courts will generally
recognize only certain aspects in the chain of events as proximate
causes
- Slide 12
- Compensable Damages v an invasion of legally protected
interests v 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 v major importance of
neuropsychological testimony is in this area; extent of
neuropsychological injury
- Slide 13
- Mental Injury and Tort Law v reluctance to compensate mental
injuries without some physical manifestation v basic mental injury
torts: tort of intentional infliction (e.g., slander) tort of
negligent infliction (e.g., residents emotionally affected by flood
damage) v the predisposed plaintiff v the as they are
principle
- Slide 14
- Issues in Evaluation v examiner bias (in both directions) v
retrospective analysis of prior mental functioning often critically
important v issue in damages: can the individual function as s/he
was? v impact of mental/emotional reactions, some of which are,
themselves, compensable v effects of litigation, distortions,
malingering
- Slide 15
- Definition of Mild TBI v Traumatically induced physiological
disruption of brain function v 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 v Exclusion Criteria: 1.loss of consciousness exceeding
approximately 30 minutes 2.after 30 minutes, a GCS falling below 13
3.post-traumatic amnesia (PTA) persisting longer than 24 hours
American College of Rehabilitative Medicine, 1993
- Slide 16
- Case Scenario in Mild Head Injury minor MVA with no or
questionable LOC, PTA, but some indication of possible orthopedic
injury minor MVA with no or questionable LOC, PTA, but some
indication of possible orthopedic injury normal ED evaluation
normal ED evaluation delayed development of de novo cognitive
problem (e.g., memory, concentration difficulty) delayed
development of de novo cognitive problem (e.g., memory,
concentration difficulty) subsequent referral to a neurologist-
neuropsychologist subsequent referral to a neurologist-
neuropsychologist Neuropsychological exam reveals abnormal
neuropsychological or neuropsychiatric test findings indicative of
brain damage Neuropsychological exam reveals abnormal
neuropsychological or neuropsychiatric test findings indicative of
brain damage
- Slide 17
- Slide 18
- Slide 19
- (JCEN, 19, 421-431)
- Slide 20
- Slide 21
- Conclusions v Severe long-term sequelae of mild TBI are rare
(5%) v Mild TBI results in NP effect sizes that average less than.5
SD v NP evals in MHT have low PPV v Therefore, some NP evaluations
lead to false positive diagnoses
- Slide 22
- 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)
- Slide 23
- Noninjury Contributors to Neuropsychological Impairment in MHI
v Adversarial patient-examiner relationship v Exaggeration or poor
effort Impairment as communication Frank malingering for gain;
financial incentives Factitious disorders v Fatigue, pain, other
physical factors v Psychiatric disturbance (e.g., psychosis,
anxiety, depression) v Pre-existing factors affecting
neuropsychological performance (e.g., learning disability, limited
education) v Occupational/life experience factors
- Slide 24
- Financial Incentives and Disability v 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
- Slide 25
- Checks against False Positives: Consistency Analysis v
Consistency of results between/within domains v Consistency with
known syndromes example: hemi-anomia v Consistency with injury
severity v Consistency with other aspects of behavior e.g. memory
abilities during vs. apart from formal testing
- Slide 26
- Post-Concussion Syndrome
- Slide 27
- Post-Concussion Syndrome: DSM-IV Definition v 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.)
- Slide 28
- 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
- Slide 29
- PCS: DSM-IV Criteria (contd) 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
- Slide 30
- PCS-Like Complaints of NP Dysfunction v Common v Nonspecific v
Potentially related to non-neurological factors (anxiety,
depression, fatigue, stress) v Correlate better with distress than
with objective indicators of CNS injury v Easy to feign or
exaggerate
- Slide 31
- Complaints as Evidence v In the absence of objective
neuro-psychological deficit, complaints are often taken to indicate
the existence of occult disease v There is a difference between
symptoms (subjective evidence) and signs (objective evidence) of
illness v Symptom reports subject to cognitive distortions and
attributional processes
- Slide 32
- Slide 33
- Problems with Using Complaints as Evidence of MHI v 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
- Slide 34
- Major PCS Symptoms Imaginary concussion produces a pattern of
symptom reports virtually identical to that seen after MHI
- Slide 35
- MHT patients significantly underestimate preinjury symptoms
compared to a noninjured control group
- Slide 36
- Slide 37
- Conclusions v You dont have to have had a head injury to have
post-concussion symptoms v Once something bad has happened to you,
you tend to attribute more of your problems to it v Complaints
reflect the subjective, not necessarily the objective, consequences
of MTBI
- Slide 38
- Implications for Understanding PCS v 5-8% of MHI patients have
persistent deficits v Physiogenic causes likely operative in the
first 1-3 months v Psychogenic causes important thereafter v
Complaints have low specificity for MHI v Baserate issues important
v Attributional processes important v Suggests need for a
scientific approach to assessing persistent complaints after
MHT