personal_injury_I_08

personal_injury_I_08 - 1 Forensic Neuropsychology in...

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Unformatted text preview: 1 Forensic Neuropsychology in Personal Injury Cases I Russell M. Bauer, Ph.D. July 3,2008 2 Compensation for Mental Injury v law in this area is called “tort” law in the case of civil proceedings tort” v governs compensation of individuals whose interests have been violated violated v recognizes potential fault or negligence of injured party v personal injury vs. worker’s compensation worker’ 3 Tort Law vs. Worker’s Compensation Worker’ v WC handled administratively; tort law handled judicially regulated by legislature; tort law by the courts v WC compensates according to fixed injury schedule according to earning capacity; tort law is earning theoretically limitless (e.g., pain and suffering, loss of consort, etc.) consort, v WC 4 Worker’s Compensation v designed to compensate injured workers for losses, incurred during the course of employment, in compensate in their wage-earning power wage- actually the result of a different set of guidelines than “tort” law different than tort” v designed to allow workers to circumvent frequently used employer defenses: circumvent – contributory negligence – you assumed the risk – another employee (who can’t pay you salary and benefits) was responsible can’ v 5 Worker’s Compensation Criteria v an injury or disability – affecting wage-earning capacity wage– facial disfigurement, loss of sexual potency doesn’t count doesn’ v arising out of or in the course of, employment – assumes causal relationship – positional risk (injury would not have occurred “but for employment”) employment” v which is “accidental” accidental” – some nonaccidents are compensable 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 can’t take case to court for further action can’ 7 Mental Injury v Physical Trauma Causing Mental Injury Stimulus Causing Physical Injury v Mental Stimulus Causing Mental Injury v Mental 8 Elements of Tort Law v act or omission + causation + fault + protected interest + damage = liability damage 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 caused” v the injury is compensable 9 Duty v “an obligation, to which the law will give recognition, to conform to a particular conform standard of conduct toward another” another” 10 Obligation v violation can be by act or by omission be intentional or negligent v negligence is “conduct which falls below the standard of care established by law law for the protection of others against reasonable risk of harm” v can 11 Proximate Cause v given the actions of A, could one reasonably foresee the consequences that consequences occurred? v most psychological theories have elaborate cause-effect chains causev courts will generally recognize only certain aspects in the chain of events as chain proximate causes 12 Compensable Damages v an invasion of “legally protected interests” interests” of harm” not sufficient; law must define interests as sufficiently important or worthy harm” important of protection to hold the person causing harm liable for damages v major importance of neuropsychological testimony is in this area; extent of area; neuropsychological injury v “feeling 13 Mental Injury and Tort Law v reluctance v basic to compensate “mental injuries” without some physical manifestation injuries” mental injury torts: – tort of intentional infliction (e.g., slander) – tort of negligent infliction (e.g., residents emotionally affected by flood damage) affected v the v the 14 “predisposed plaintiff” plaintiff” “as they are” principle are” Issues in Evaluation v examiner bias (in both directions) analysis of prior mental functioning often critically important critically v issue in damages: can the individual function “as s/he was”? was” v impact of mental/emotional reactions, some of which are, themselves, compensable themselves, v effects of litigation, distortions, malingering v retrospective 15 Definition of Mild TBI v v Traumatically induced physiological disruption of brain function At least one of the following: 1. 2. 3. 4. any period of loss of consciousness any loss of memory for events immediately before or after the accident accident any alteration of mental state at the time of accident (e.g., feeling dazed, disoriented, or confused) feeling 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 post- 16 Case Scenario in “Mild Head Injury” 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) novo” subsequent referral to a neurologist-neuropsychologist neurologistNeuropsychological exam reveals abnormal neuropsychological or neuropsychiatric test findings indicative of neuropsychiatric “brain damage” damage” 17 18 19 20 21 Conclusions v Severe long-term sequelae of mild TBI are rare (5%) longv 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 positive” 22 Caveats (Bigler, 2001) v The “lesion” is always larger than visualized lesion” scans may not signify absence of pathology v DOI scans may not be enough v Long-term sequelae (e.g., accelerated aging) Longv Normal 23 “Noninjury” Contributors to Neuropsychological Impairment in MHI Noninjury” v v Adversarial patient-examiner relationship patientExaggeration 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) v Pre-existing factors affecting neuropsychological performance (e.g., learning disability, limited education) Prev Occupational/life experience factors v v 24 Financial Incentives and Disability v Binder & Rohling (AJP, 1996, 153, 7-10) 7- – Meta-analytic review of financial incentives and symptoms Meta– 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 compensation-seeking groups latecompensation25 Checks against False Positives: Consistency Analysis v Consistency of results between/within domains with known syndromes – example: “hemi-anomia” hemi- anomia” v Consistency with injury severity v Consistency with other aspects of behavior – e.g. memory abilities during vs. apart from formal testing v Consistency 26 Post-Concussion Syndrome 27 Post-Concussion Syndrome: DSM-IV Definition PostDSM- impairment in cognitive functioning, accompanied by specific accompanied neurobehavioral symptoms, that occurs as a consequence of closed head injury v “acquired of sufficient severity to produce a significant cerebral concussion” (LOC, PTA, concussion” etc.) 28 PCS: DSM-IV Criteria A B C Hx of head trauma that has caused significant cerebral concussion Evidence from NP testing or quantified cognitive assessment of difficulty in attention or memory difficulty Three (or more) of the following occur shortly after trauma and last at least 3 months: – – – – – – – – 29 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) DSM(cont’ D. Symptoms E F 30 begin after head trauma or else represent a worsening of pre-existing symptoms of preSignificant impairment in social or occupational function; decline from previous functional decline level Do not meet criteria for dementia and are not better accounted for by another mental disorder PCS-Like Complaints of NP Dysfunction PCSv Common v Nonspecific v Potentially related to non-neurological factors (anxiety, depression, fatigue, nonstress) v Correlate better with distress than with objective indicators of CNS injury v Easy to feign or exaggerate 31 Complaints as “Evidence” In the absence of objective neuro-psychological deficit, complaints are often taken to indicate the existence neurothe of occult disease v There is a difference between symptoms (subjective evidence) and signs (objective evidence) of illness symptoms (subjective signs v Symptom reports subject to cognitive distortions and attributional processes attributional v 32 33 Problems with Using Complaints as Evidence of MHI v Mittenberg et al. (1992, 1997): “expectation as etiology” etiology” – ‘imaginary concussion’ produces symptom complaint cluster identical to that reported by concussion’ patients with ‘real’ head injury real’ – patients with minor TBI significantly underestimate degree of pre-injury problems pre34 35 36 37 Conclusions v You don’t have to have had a head injury to have post-concussion symptoms don’ postv Once something bad has happened to you, you tend to attribute more of your problems to it more v Complaints reflect the subjective, not necessarily the objective, consequences of MTBI objective, 38 Implications for Understanding PCS v 5-8% of MHI patients have persistent deficits causes likely operative in the first 1-3 months 1v 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 v Physiogenic ...
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This note was uploaded on 12/01/2011 for the course CLP 7934 taught by Professor Staff during the Summer '08 term at University of Florida.

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