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Page 1: BOOK REVIEW Neuropsychology in Personal Injury Litigation

This article was downloaded by: [University of Glasgow]On: 21 December 2014, At: 18:32Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: MortimerHouse, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of Clinical and ExperimentalNeuropsychologyPublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/ncen20

BOOK REVIEW Neuropsychology in Personal InjuryLitigationGlenn J. LarrabeePublished online: 09 Aug 2010.

To cite this article: Glenn J. Larrabee (2000) BOOK REVIEW Neuropsychology in Personal Injury Litigation, Journal ofClinical and Experimental Neuropsychology, 22:5, 702-707

To link to this article: http://dx.doi.org/10.1076/1380-3395(200010)22:5;1-9;FT702

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Page 2: BOOK REVIEW Neuropsychology in Personal Injury Litigation

* The author acknowledges the assistance of Susan M. Towers and Kristin Kravitz in the preparation of thisreview.Address correspondence to: Glenn J. Larrabee, 630 S. Orange Avenue, Suite 202, Sarasota, FL 34236.Accepted for Publication: April 19, 2000

Journal of Clinical and Experimental Neuropsychology 1380-3395/00/2205-702$15.002000, Vol. 22, No. 5, pp. 702-707 © Swets & Zeitlinger

BOOK REVIEW

Neuropsychology in Personal Injury Litigation*

Jerry J. Sweet (Ed.)(1999): Forensic Neuropsychology: Fundamentals and Practice Lisse (TheNetherlands): Swets & Zeitlinger, 554 pp. HB: ISBN 90-265-1544-8, $119.00 (U.S.)

Reviewed by Glenn J. Larrabee

This is the second volume on forensic neuropsy-chology to appear in the last 3 years. In 1997,McCaffrey, Williams, Fisher, and Laing (1997)produced an overview of the field as part of thePlenum Critical Issues in Neuropsychology se-ries. The McCaffrey et al. work, though brieferin total text (210 pages vs. 480 for Sweet, 1999),also covered criminal forensic neuropsychology,an area not reviewed in Sweet’s text. ForensicNeuropsychology: Fundamentals and Practice,includes 15 chapters, organized in four contentareas: Fundamentals, Practice Expertise, Rele-vant Populations, and Parameters of the Foren-sic Arena.

Authors of any text on forensic neuropsychol-ogy need to be aware that they are writing fortwo audiences: neuropsychologists and attor-neys. Consequently, a section on fundamentalissues in neuropsychology is appropriate, eventhough it may be (hopefully) redundant for mostexpert neuropsychologists. Berent and Swartzpresent a solid general review of essential psy-chometrics, discussing standardization, reliabil-ity, and the different types of validity, as well asdiagnostic sensitivity and specificity. This chap-ter, with its sound coverage of psychometricfactors, would have been an optimal forum fordiscussing the relationship of well-designed ver-sus poorly designed tests to the Daubert stan-dards, as well as appropriate for reviewing thefixed versus flexible battery debate in relation-ship to Frye and to Daubert.

Whereas the Berent and Swartz chapter islikely to be more informative for the practicingattorney than for the expert neuropsychologist,Gouvier’s Chapter 2, ‘‘Base rates and DecisionMaking in Clinical Neuropsychology,’’ has im-portant material for both groups of profession-als. Gouvier provides a clear definition of baserates, false positive and false negative errors andthe relationship of all three to the effectivenessof a test, using concrete examples. For a test tobe effective, it must exceed the accuracy of pre-diction made by the base rate alone. Further-more, Gouvier nicely demonstrates that a testcannot improve on accuracy over base ratesalone if the combined error rate (false positiveplus false negative) exceeds the frequency of thecondition that is to be predicted. Gouvier’schapter closes with discussion of Daubert andjunk science, and how poor forensic practice canbe easily challenged by an attack grounded onbase-rate analysis.

Estimation of premorbid function is quite im-portant in personal injury forensic practice, forit allows determination of whether there hasbeen a significant change in a person’s psycho-logical or neuropsychological functions conse-quent to injury or trauma. Putnam, Ricker, Ross,and Kurtz provide a thorough overview of theestimation and determination of premorbid intel-lectual and cognitive function, in Chapter 3. Ad-ditionally, Putnam et al. provide a thorough dis-cussion of the evaluation of premorbid personal-

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ity and its relationship to post-trauma psycho-logical and neuropsychological status, some-thing this reviewer has not seen covered in otherreview articles covering estimation of premorbidfunction. Included in this discussion is a reviewof the base rates of commonly reported neuro-psychological symptoms, a factor frequentlyignored in both forensic and clinical neuropsy-chological practice. Also of interest is Putnam etal.’s discussion of the limitations of SPECT andQEEG (under the heading ‘‘Premorbid factorsthat may affect neurodiagnostic tests’’). Thislatter topic is of sufficient importance to be de-serving of a separate chapter.

The second section of Forensic Neuropsy-chology, Practice Expertise, expands on issuescovered in the first section. This section alsointroduces new topics, including two chapters onthe evaluation of malingering, and a chapter onevaluation of executive functions.

Chapter 4, by Rankin and Adams, ‘‘The Neu-ropsychological Evaluation: Clinical and Scien-tific Foundations,’’ can be seen as an extensionof the Berent and Swartz chapter on psychomet-rics, to the actual practice of forensic neuropsy-chological evaluation in a personal injury set-ting. The Rankin and Adams chapter provides anoverview of the history of contemporary neuro-psychology, including training of the contempo-rary neuropsychologist, which should be partic-ularly useful to the attorneys who will read thisbook. The particular strength of this chapter isthe emphasis of the clinical and scientific foun-dations of neuropsychology, and the complexityof the forensic evaluation, which includes inte-grating test findings and interview material withother records and sources of information; inother words, forensic neuropsychology is notmerely the process of obtaining symptom com-plaints and test scores, and determining whichtest scores fall above or below cut-offs for‘‘brain damage,’’ for validation of patient com-plaints.

Chapter 5, by Bieliauskas, ‘‘The Measure-ment of Personality and Emotional Function-ing,’’ can be considered as an extension and ex-panded consideration of personality assessmentissues raised in the Putnam et al. chapter. Addi-tionally, Bieliauskas considers differential diag-

nosis of post-injury conditions such as Posttrau-matic Stress Disorder and Somatoform Disor-der. He discusses the poor specificity of post-concussion symptoms and the problems atten-dant to the over diagnosis of PTSD, in referenceto actual prevalence data on PTSD. Bieliauskasalso considers compensation neurosis, an olderterm that is attracting renewed interest. Hedraws an interesting parallel between the symp-toms of compensation neurosis and those ofpost-concussion syndrome. In his discussion ofsomatoform disorders, Bieliauskas clarifies theimportance of ‘‘necessary’’ vs. ‘‘sufficient;’’that is, while an injury could be sufficient tocause a somatoform reaction, it may not be nec-essary for symptom experience, as other mean-ingful events could have resulted in a similarsymptom expression because of the patient’spredisposition.

In Chapter 6, ‘‘Interpreting Apparent Neu-ropsychological Deficits: What is ReallyWrong?’’, Kay provides a detailed review of theforensic evaluation process, with a major em-phasis on a careful objective process of differen-tial diagnosis. Kay maintains it is the burden ofproof to demonstrate that the objective opinionoffered fits the data better than any other expla-nation. Kay offers a neuropsychological modelof functional disability, which requires integra-tion of neurologic factors, physical factors, psy-chological factors, and assessment of objectiveand subjective cognitive factors. Kay also dis-cusses several non-neurologic factors influenc-ing cognitive performance including drugs, pa-tient fatigue, pain, anxiety, and depression. Inthis vein, Kay also reminds the reader that de-pression, in addition to affecting neuropsycho-logical performance, can result in changes infunctional neuroimaging (PET, CBF), whichcalls into question the specificity of neuro-imaging findings in the individual forensic case.Kay provides a set of guidelines for interpretingapparent deficits, including: (1) do apparent def-icits exist?; (2) do apparent deficits form a con-sistent pattern?; (3) is the pattern of apparentdeficits consistent with the injury?; (4) does thepattern of apparent deficits match the subjectivecomplaints?; (5) what can explain the mis-matches?; (6) what are the etiologies of the defi-

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cits?; and (7) what dynamic explanation best fitsthe level of function?

Chapter 7, ‘‘Complexities in the Evaluationof Executive Functions,’’ by Osmon, is one ofthe best reviews of executive functions this re-viewer has seen. Osmon defines executive func-tioning, and highlights how executive functionsare among the principal brain abilities underly-ing real world adaptability. The various fraction-ated aspects of executive function are identifiedand discussed, including: (1) working memory;(2) interference; (3) inhibition; (4) conditionalaction; (5) planning; and (6) expression and reg-ulation of socio-emotional functions. Osmonholds that current measures of executive func-tion must satisfy three criteria: (1) they mustactivate frontal regions in functional neuro-imaging; (2) they must be associated with im-pairment when frontal lesions are present; and(3) they must be associated with one of the sixaforementioned fractionated aspects of execu-tive function. Osmon’s chapter clearly shows thepromise of the role of executive functions inforensic practice, but additional discussion ofthe role these functions play outside of personalinjury settings, would be informative, for exam-ple, in addressing issues of testamentary capac-ity, and competency and responsibility in crimi-nal settings. Such discussion would further dem-onstrate the forensic significance of executivedysfunction.

Chapter 8, ‘‘Ecological Validity: Predictionof Everyday and Vocational Functioning fromNeuropsychological Test Data,’’ by Sbordoneand Guilmette, covers an area of growing impor-tance in neuropsychology in general, and foren-sic neuropsychology in particular. The authorsdefine ecological validity as the functional andpredictive relationship between performance onneuropsychological tests and behavior in a vari-ety of real world settings such as home, work, orschool. Sbordone and Guilmette recommend avector analysis approach, wherein informationabout a patient’s behavior is obtained from avariety of sources, and if this lines up consis-tently with the neuropsychological data, thenthere is a high probability the data are ecologi-cally valid. The authors consider various do-mains of ecological validity, including predic-

tion of everyday function (i.e., activities of dailyliving), prediction of driving abilities, predictionof memory functioning, ecological assessmentof executive functions and problem solving, andprediction of vocational functioning.

Malingering, a key problem in many forensicsettings, is covered in two chapters. Chapter 10,‘‘Cognitive Psychophysiology in Detection ofMalingered Cognitive Deficit,’’ by Rosenfeldand Ellwanger, presents a unique means of eval-uating dissimulated cognitive performance byevaluating P-300 event-related potentials(ERPs) in relation to accuracy of overt recogni-tion. They provide some interesting data on dis-sociations between persons claiming no recogni-tion of stimuli, versus ERP evidence of actualrecognition.

A more extensive, traditional review of ma-lingering is provided by Sweet in Chapter 9. Hediscusses various means of evaluating malinger-ing and insufficient effort, including: (1) use ofspecific tests devised solely for evaluation ofmalingering, suchas forced-choice methodologyand the Rey-15 item test; (2) evaluating patternsof insufficient effort on standard neuropsycho-logical tests; (3) nonsensical patterns of perfor-mance such as memory performance signifi-cantly better than attentional performance; (4)excessive inconsistency; (5) comparison of testbehavior to real life behavior; and (6) whatSweet terms the determination of self-servingvs. real life loss. Regarding this latter category,Sweet contends that malingerers will not engagein protracted or invasive procedures. The readershould note that this latter point is not supportedby the clinical literature; that is, when one con-siders that persons with factitious disorder willintentionally submit to protracted or invasivemedical procedures, it does not make sense toexpect that malingerers will not intentionallysubmit to invasive procedures.

There are two significant problems withSweet’s chapter. The first is that he only coversmalingering of neuropsychological test perfor-mance, and omits discussion of malingering ofsymptom report. This is a significant omission,given the malingering research available on theMMPI (Heaton, Smith, Lehman, & Vogt, 1978),and MMPI-2 (Berry et al., 1995) in neuropsy-

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chological settings. The second problem isSweet’s characterization of malingering as arelatively low base rate phenomenon, with alower bound estimate of 7.5 to 15% and upperbound of 18 to 33%. These figures are lowerthan those reported in several different investi-gations. Binder and Kelly (1996) found a 47%base rate in consecutive minor head injury refer-rals using a 98% specificity cut-off on thePDRT; Youngjohn, Burrows, and Erdal (1995)found a 48% base rate; Millis (1992) found a50% base rate using a cut-off with 100% speci-ficity (and 70% using a cut-off with 90% speci-ficity); and Greiffenstein, Baker, and Gola(1994) found a 60% base rate of motivationalimpairment. These studies suggest a base rate ofmalingering that is closer to 50% in consecutivemild head injury referrals, a value nearly 10times the estimated base rate of persistent deficitfollowing mild closed head injury (CHI), 5% to6% (Binder, Rohling, & Larrabee, 1997).

The third section of this edited volume coversrelevant populations. This is an important sec-tion of any forensic text, which should coverpatient populations frequently seen in civil orcriminal litigation. It is imperative that reviewsof findings on these relevant populations be up-to-date, regarding the current state of knowl-edge, as forensic texts serve two groups of con-sumers: attorneys and neuropsychologists.

Chapter 11 by Ruff and Richardson on mildclosed head injury, discusses some of the prob-lems inherent in the evaluation of these individ-uals. The authors propose a redefinition of mildclosed head injury, linked to the American Con-gress of Rehabilitation Medicine definition, thatallows for grading of severity of injury, withinthe group of mild closed head injury patients(Type I, Type II, and Type III). They discussdiffuse axonal injury (DAI) in relation to mildCHI, but should be more cautious (Note: DAI isnot a frequent outcome in fatal, non-missileCHI, occurring in approximately 28% of pre-dominantly severe CHI, with an incidence of35% following motor vehicle accident, and 15%following falls; Adams et al., 1989). Ruff andRichardson emphasize the need for a carefuldifferential diagnosis of mild CHI, includingbeing aware of potential biases (plaintiff and

defense) in forensic decision making, and theimportance of avoiding iatrogenic contributionto mild CHI patients’ symptomatic complaints.A drawback of this chapter is that it gives theimpression that loss of consciousness and/orpost-traumatic amnesia (PTA) are the ‘‘magicbullets’’ for permanency, whereas the prognos-tic value of these acute injury characteristicsdepends upon degree or magnitude of loss ofconsciousness or PTA, not merely upon thepresence of these conditions. Indeed, Dikmen,Machamer, Winn, and Temkin (1995) found thathead-injured patients (some of whom had CTabnormalities) who took up to one hour to fol-low a doctor’s commands, had one-year neuro-psychological test performance that was indis-tinguishable from non-head injured orthopediccontrols. The effect size of .02 demonstratedessentially complete overlap of test performancewith that of the control group (cf. Binder et al.,1997). Although the authors state their beliefthat most persons with mild CHI recover, theycould further educate the reader that most per-sons make full and complete recovery usuallywithin one to three months post-trauma (Levinet al., 1987).

Chapter 12, by Hartman, ‘‘Neuropsychologyand the Toxic Tort’’, reviews basic aspects ofthe evaluation of plaintiffs with claims of injurysecondary to neurotoxic exposure. Hartman re-views, in broad strokes, various potential toxinsincluding heavy metals, solvents, pesticides,prescription drugs, and hazardous waste dis-posal. Hartman notes the similarity between thesubtle deficits that can be seen following toxicexposure to those seen following mild head in-jury. The author advocates taking a scien-tist/clinician approach to evaluating these cases,with admonitions regarding potential sources ofbias. Hartman’s caution regarding reliance ondose-response relationships is somewhat curi-ous, given his previously noted observations ofthe similarities between litigants pursuing neu-rotoxic torts and those pursuing mild CHIclaims, and the fairly well-established view ofthe importance of dose-response relationships inthe neurotoxicology literature (Ottobani, 1991).Hartman recommends an inter-disciplinaryteam, including occupational medicine, neurol-

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ogy, and toxicology, in the evaluation of neuro-toxic injuries. He presents a five step chain ofinference: (1) evaluation of pre-morbid status;(2) evaluation of whether an exposure actuallytook place – one cannot conclude this merely onthe basis of patient symptom report; (3) evalua-tion of the credibility of symptoms; (4) evalua-tion of the temporal relationship between expo-sure and symptom development; and (5) evalua-tion of the internal consistency and ecologicalvalidity of the neuropsychological test results.Various conclusions can be reached followingsuch an analysis including: (1) behavioral, cog-nitive, or affective symptoms may be the conse-quences of structural or neurochemical lesion;(2) symptoms may be reactive to the psychoso-cial stressors of exposure; (3) symptoms may beunrelated to exposure; or (4) symptoms may bemalingered.

Lorber and Yurk discuss neuropsychologicalapplications in the schools. The primary focus inthis chapter is on due process, and entitlementsmandated by federal and state laws for childrenwho have neurologically-based deficits. Lorberand Yurk review the development of the nervoussystem and developmental disorders of motorfunction, visuoperceptual and spatial function,attention, auditory processing, memory, langua-ge, abstract reasoning, and concept formation,reading, writing, and mathematics. They discussthe involvement of the neuropsychologist in dueprocess hearings, and in helping to establish In-dividualized Education Programs.

The fourth section of the book, entitled ‘‘Pa-rameters of the Forensic Arena,’’ contains achapter authored by an attorney, Taylor, as wellas a chapter co-authored by a psychologist, Lees-Haley, and an attorney, Cohen. Taylor (Chapter14), identifies himself as an expert in represen-tation of plaintiffs who have sustained traumaticbrain injury (he has authored a book on thistopic, and helped found the Neurolaw Letter).He reviews the legal problems neuropsychol-ogists have encountered in offering admissibleexpert testimony, including relevant legal defi-nitions, qualifications of expert witness, andrelevant appellate court cases. Taylor alsoclearly discusses the important role neuropsy-chology plays in plaintiff’s presentation of their

case. There is also some discussion regardingeffective presentation of neuropsychologicalevidence.

Chapter 15, by Lees-Haley and Cohen, em-phasizes the role of the expert in presentingcredible science in the courtroom. The role ofthe expert is defined. Lees-Haley and Cohenalso discuss potential areas of conflict (treatingpsychologist testifying as an expert on behalf ofpatients; disclosure of test data and test materi-als; combating tendencies to want to pleaseone’s referral source with information helpful tothe case). Scientific and methodological prob-lems pertinent to expert testimony are reviewed,with considerable text devoted to the problem ofover-interpretation of data. Lees-Haley and Co-hen discuss Daubert, and provide an interestingtable that distinguishes the scientific expert fromthe pseudo-scientific expert on 17 different di-mensions.

Overall, Forensic Neuropsychology: Funda-mentals and Practice, is focused entirely on per-sonal injury litigation, with the exception of theLorber and Yurk chapter on pediatric neuropsy-chology and due-process issues. Given this per-sonal injury bias, the book is conspicuous for theabsence of chapters on moderate to severeclosed head injury, in both adults and children,as well as a chapter on the important and grow-ing area of life-care planning.

Although the largest area of application offorensic neuropsychology is most likely in per-sonal injury litigation, where the establishmentof damages is a key legal issue, there are otherareas of law in which forensic neuropsychologycan be used to address legal issues. Several ofthese areas are covered in the comprehensivePsychological Evaluations for the Courts. AHandbook for Mental Health Professionals andLawyers, by Melton, Petrila, Poythress, andSlobogin (1997). Conspicuous by its absence inForensic Neuropsychology: Fundamentals andPractice is a chapter on criminal forensic neuro-psychology. Neuropsychology has much to offerin the criminal setting, regarding various compe-tencies (to proceed to trial, to be sentenced,etc.), as well as criminal responsibility or ‘‘san-ity’’ at the time of offense (Denney & Wyn-koop, 2000). A major area of concern, also not

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covered in Sweet (1999) is the area of civil com-petencies, for example, testamentary capacity(Spar & Garb, 1992) and competency to consentto treatment (Marson, Cody, Ingram, & Harrell,1995).

Despite the lack of coverage of important ar-eas of forensic practice, Forensic Neuropsychol-ogy: Fundamentals and Practice, has a suffi-cient number of truly excellent chapters to sup-port purchase of the book. Particularly goodchapters are those by Gouvier on base rates, Put-nam et al. on premorbid assessment, Bieliauskason personality and emotional function, Osmonon executive function, Sbordone and Guilmetteon ecological validity, Taylor on the legal envi-ronment, and Lees-Haley and Cohen on crediblescience in the courtroom.

REFERENCES

Adams, J. H., Doyle, D., Ford, I., Gennarelli, T. A.,Graham, D. I., & McLellan, D. R. (1989). Diffuseaxonal injury in head injury: definition, diagnosis,and grading. Histopathology, 15, 49-59.

Berry, D. T. R., Wetter, M. W., Baer, R. A., Young-john, J. R., Gass, C. S., Lamb, D. G., Franzen, M.D., MacInnes, W. D., & Buchholz, D. (1995). Overreporting of closed head injury symptoms on theMMPI-2. Psychological Assessment, 7, 517-523.

Binder, L. M., & Kelly, M. P. (1996). Portland DigitRecognition Test performance by brain dysfunc-tion patients without financial incentives. Assess-ment, 3, 403-409.

Binder, L. M., Rohling, M. L., & Larrabee, G. J.(1997). A review of mild head trauma. Part I: Me-ta-analytic review of neuropsychological studies.Journal of Clinical and Experimental Neuropsy-chology, 19, 421-431.

Denney, R. L., & Wynkoop, T. F. (2000). Clinicalneuropsychology in the criminal forensic setting.Journal of Head Trauma Rehabilitation, 15, 804-828.

Dikmen, S. S., Machamer, J. E., Winn, H. R., &Tempkin, N. R. (1995). Neuropsychological out-come at 1-year post head injury. Neuropsychology,9, 80-90.

Greiffenstein, M. F., Baker, W. J., & Gola, T. (1994).Validation of malingered amnesia measures with alarge clinical sample. Psychological Assessment, 6,218-224.

Heaton, R. K., Smith, H. H., Jr., Lehman, R. A., &Vogt, A. J. (1978). Prospects for faking believabledeficits on neuropsychological testing. Journal ofConsulting and Clinical Psychology, 46, 892-900.

Levin, H. S., Mattis, S., Ruff, R. M., Eisenberg, H.M., Marshall, L. F., Tabbador, K., High , W. M.,Jr., & Frankowski, R. F. (1987). Neurobehavioraloutcome of minor head injury: A three centerstudy. Journal of Neurosurgery, 66, 234-243.

Marson, D. C., Cody, H. A., Ingram, K. K., & Harrell,L. E. (1995). Neuropsychologic predictors of com-petency in Alzheimer’s disease using a rationallegal standard. Archives of Neurology, 52, 955-959.

McCaffrey, R. J., Williams, A. D., Fisher, J. M., &Laing, L. C. (Eds.) (1997). The practice of forensicneuropsychology. Meeting challenges in the court-room. New York: Plenum.

Melton, G. B., Petrila, J., Poythress, N. G., &Slobogin, C. (1997). Psychological evaluations forthe courts. A handbook for mental health profes-sionals (2nd ed.). New York: Guilford.

Millis, S. R. (1992). The Recognition Memory Test inthe detection of malingered and exaggerated mem-ory deficits. The Clinical Neuropsychologist, 6,406-414.

Ottoboni, A. M. (1991). The dose makes the poison. Aplain-language guide to toxicology. New York,NY: Van Nostrand Reinhold.

Spar, J. E., & Garb, A. S. (1992). Assessing compe-tency to make a will. American Journal of Psychia-try, 149, 169-174.

Youngjohn, J. R., Burrows, L., & Erdal, K. (1995).Brain damage or compensation neurosis? The con-troversial post-concussion syndrome. The ClinicalNeuropsychologist, 9, 112-123.

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