personal_injury_I_08 - Forensic Neuropsychology in Forensic...

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Unformatted text preview: Forensic Neuropsychology in Forensic Neuropsychology in Personal Injury Cases I Russell M. Bauer, Ph.D. July 3,2008 Compensation for Compensation for Mental Injury law in this area is called “tort” law in the case of civil proceedings y governs compensation of individuals whose interests have been violated y recognizes potential fault or negligence of injured party y personal injury vs. worker’s compensation y Tort Law vs. Worker’s Tort Law vs. Worker’s Compensation y y y 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 Worker’s Compensation y y y designed to compensate injured workers for losses, incurred during the course of employment, in their wage­earning 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 Worker’s Compensation Criteria y y y an injury or disability – affecting wage­earning 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 Procedures for WC Claims Employee serves notice y Medical examination y Proceeding for Adjustment and Compensation y – administrative hearing before hearing officer – once settled, claimant can’t take case to court for further action Mental Injury Mental Injury Physical Trauma Causing Mental Injury y Mental Stimulus Causing Physical Injury y Mental Stimulus Causing Mental Injury y Elements of Tort Law Elements of Tort Law act or omission + causation + fault + protected interest + damage = liability y existence of duty owed the plaintiff by the defendant y Violation of duty by the defendant y an injury “proximately caused” by the violation, and y the injury is compensable y Duty Duty y “an obligation, to which the law will give recognition, to conform to a particular standard of conduct toward another” Obligation Obligation violation can be by act or by omission y can be intentional or negligent y negligence is “conduct which falls below the standard of care established by law for the protection of others against reasonable risk of harm” y Proximate Cause Proximate given the actions of A, could one reasonably foresee the consequences that occurred? y most psychological theories have elaborate cause­effect chains y courts will generally recognize only certain aspects in the chain of events as proximate causes y Compensable Damages Compensable y y y 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 Me nta l Injury a nd Tort La w Me y y 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) y y the “predisposed plaintiff” the “as they are” principle Issues in Evaluation Issues in Evaluation y y y y y 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 Definition y y y 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 13 3. post­traumatic amnesia (PTA) persisting longer than 24 hours American College of Rehabilitative Medicine, 1993 Case Scenario in “Mild Head Injury” Case • • • • • 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” What does the literature on MHI say What does the literature on MHI say about long­term outcome? x Dikmen, et al. (1995): studied 1­ year outcome in 436 head injured and 121 general trauma controls – MHT has good outcome in vast majority (95%) of patients x Binder, Rohling & Larrabee (1997) – used “d” ­ control group SD – used “g” ­ pooled SD of both groups – found very small effects of MHT Effect Sizes in Prospective and Effect Sizes in Prospective and Quasi­ Prospective NP Studies STUDY Ewing Alterman Hugenholz Ruff 89 Ruff 89 Ruff 89 Montgomery Bornstein Dikmen Cremona­ Meteyard 1 Cremona­ Meteyard 2 d Effect .737 ­.181 .466 .260 ­.411 .317 ­.154 .278 .019 .821 Hedges g Effect .737 ­.208 .371 .187 ­.461 .112 ­.228 .223 .023 .523 MHT Sample 10 25 22 16 06 10 26 24 161 06 Cont Sample 10 25 22 26 12 18 26 24 121 09 .444 .245 08 09 TSI 2.2y remote 3m 3m 3m 6m 15y 1y 1y 1y or more Binder, Rohling , & Larrabee, 1997 (JCEN, 19, 421­431) Possible PPV and N PV of N P Diagnosis ­ Possible PPV and N TBI Prevalence of .05 Sensitivity Specificity .80 .90 .90 .70 .70 .70 .88 .70 .90 .90 .80 .70 PPV N PV .26 .14 .32 .27 .16 .11 .99 .99 .99 .98 .98 .98 Binder, Rohling , & Larrabee, 1997 (JCEN, 19, 421­431) Conclusions Conclusions Severe long­term sequelae of mild TBI are rare (5%) y Mild TBI results in NP effect sizes that average less than .5 SD y NP evals in MHT have low PPV y Therefore, some NP evaluations lead to “false positive” diagnoses y Caveats (Bigler, 2001) Caveats (Bigler, 2001) The “le s ion” is a lwa ys la rge r tha n The vis ua lize d vis y Norma l s ca ns ma y not s ignify a bs e nce Norma of pa thology of y DOI s ca ns ma y not be e nough y Long-te rm s e que la e (e .g., a cce le ra te d Long-te a ging) y “Noninjury” Contributors to Neuropsychological Noninjury” Impairment in MHI Impairment y Adversarial patient­examiner relationship y Exaggeration or poor effort – Impairment as communication – Frank malingering for gain; financial incentives – Factitious disorders y y y y Fatigue, pain, other physical factors Psychiatric disturbance (e.g., psychosis, anxiety, depression) Pre­existing factors affecting neuropsychological performance (e.g., learning disability, limited education) Occupational/life experience factors Financial Incentives and Disability Disability y Binder & Rohling (AJP, 1996, 153, 7­10) – Meta­analytic 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 late­onset symptoms in groups seeking compensation C he cks a ga ins t Fa ls e P os itive s : C ons is te ncy Ana lys is y y y y Consistency of results between/within domains Consistency with known syndromes – example: “hemi­anomia” Consistency with injury severity Consistency with other aspects of behavior – e.g. memory abilities during vs. apart from formal testing Post­Concussion Syndrome Post­Concussion Syndrome Post­Concussion Syndrome: DSM­IV Post­Concussion Syndrome: DSM­IV Definition y “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.) PCS: DSM­IV Criteria PCS: DSM­IV 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 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) PCS: D. E F Symptoms begin after head trauma or else represent a worsening of pre­existing symptoms Significant impairment in social or occupational function; decline from previous functional level Do not meet criteria for dementia and are not better accounted for by another mental disorder PCS-Like Complaints of NP Dysfunction Dysfunction Common y Nonspecific y Potentially related to non­neurological factors (anxiety, depression, fatigue, stress) y Correlate better with distress than with objective indicators of CNS injury y Easy to feign or exaggerate y Complaints as “Evidence” Complaints y y y In the absence of objective neuro­psychological 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 x Complaints (N=45) as “Evidence” “She reports feeling tired, moving slowly, losing her balance, t ripping over things, and feeling weak and dizzy. She also reported increased sensitivity to noise, altered perception of the ambient temperature (feeling warm when others are comfortable), poor concentration, forgetfulness, finding once ro utine activities now complicated, diminished sexual functioning, sleep problems, fati gue and low energy level, anxiety and nervousness, “panic attacks”, lack of patienc e, decline in handling household chores, fear of certain situations, decline in recreat ional activities, concerns and worried about her health, depressed mood, decline in her abi lity to work, diminished interest in pleasurable activities, weight gain of 55 pounds, fe elings of worthlessness and guilt, difficulty with language and word-finding, difficulty with concentration and thought processing, difficulties with making conversation and un derstanding it, writing slowly and illegibly, finding it difficulty to get started on th ings, trouble making decisions, difficulty pronouncing words, forgetting people’s nam es, getting her mind off certain thoughts, misplacing things, and becoming easily distrac ted. Scattered and confused behavior permeates all aspects of her life. She also r eports periods of time where she becomes completely disoriented to her place and purpos e. She experiences severe headaches, shoulder, neck, back, and leg problems, severe depression and cognitive dysfunction”. P roble m s with Us ing C om plaints as Evide nce of MHI MHI y 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 pre­injury 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 Base Base Rates of Post-Concussion Symptoms ( Larrabee, 1997, based on Lees-Haley & Brown, 1993) Symptoms Headaches Fatigue D izziness Blurred Vision b Bothered by N oise Bothered by Light b Insomnia Poor Concentration Irritability Loss of Temper Memory Problems b Anxiety Medical Controls 62% 58% 26% 22% c 18% ­ d 52% 26% 38% ­ 20% 54% N on­CN S Litigants 88% 79% 44% 32% c 29% ­ d 92% 78% 77% ­ 53% 93% a aNon CNS Litigants: in litigation for emotional or industrual stress, but not for CNS injuries, bsignificant difference from controls at 1m, but not 1y in Dikmen et al., 1986; c ”hearing problems in Lees­Haley & Brown, 1993;d”sleeping problems in Lees­ Haley & Brown, 1993 Conclusions Conclusions y y y You don’t have to have had a head injury to have post­concussion 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 Implications for Understanding PCS y y y y y y y 5­8% of MHI patients have persistent deficits Physiogenic causes likely operative in the first 1­3 months Psychogenic causes important 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 ...
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