The Forensic Evaluation of Traumatic Brain Injury: A Handbook for Clinicians and Attorneys, Second Edition

s e cond e di t ion

The

Forensic evaluation of Tr aum atic Br ain Injury A H A NDBOOK for C linici a ns a nd At tor neys

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s e cond e di t ion

The

Forensic evaluation of Tr aum atic Br ain Injury A H A NDBOOK for C linici a ns a nd At tor neys Edited by

Gregory J. Murrey Donald Starzinski

Boca Raton London New York

CRC Press is an imprint of the Taylor & Francis Group, an informa business

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CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487‑2742 © 2008 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Printed in the United States of America on acid‑free paper 10 9 8 7 6 5 4 3 2 1 International Standard Book Number‑13: 978‑0‑8493‑9075‑3 (Hardcover) This book contains information obtained from authentic and highly regarded sources. Reprinted material is quoted with permission, and sources are indicated. A wide variety of references are listed. Reasonable efforts have been made to publish reliable data and information, but the author and the publisher cannot assume responsibility for the validity of all materials or for the conse‑ quences of their use. No part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www. copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC) 222 Rosewood Drive, Danvers, MA 01923, 978‑750‑8400. CCC is a not‑for‑profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging‑in‑Publication Data The forensic evaluation of traumatic brain injury : a handbook for clinicians and attorneys / Gregory J. Murrey and Donald Starzinski, editors. ‑‑ 2nd ed. p. ; cm. “A CRC title.” Includes bibliographical references and index. ISBN 978‑0‑8493‑9075‑3 (hardcover : alk. paper) 1. Brain damage‑‑Diagnosis. 2. Forensic neuropsychology. 3. Forensic psychology. 4. Neurologic examination. 5. Mental status examination. I. Murrey, Gregory J. (Gregory Jay), 1960‑ II. Starzinski, Donald. [DNLM: 1. Brain Injuries‑‑diagnosis‑‑Handbooks. 2. Expert Testimony‑‑Handbooks. 3. Forensic Medicine‑‑methods‑‑Handbooks. 4. Neuropsychological Tests‑‑Handbooks. WL 39 F711 2008] RC387.5.F66 2008 614’.1‑‑dc22

2007024064

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Contents List of Tables and Figures..........................................................................................ix Preface.......................................................................................................................xi Acknowledgments................................................................................................... xiii About the Editors...................................................................................................... xv Contributors............................................................................................................xvii Chapter 1

Overview of Traumatic Brain Injury: Issues in the Forensic Assessment..........................................................................................1 Gregory J. Murrey

Chapter 2

The Forensic Neurological Assessment of Traumatic Brain Injury.......................................................................................25 Donald T. Starzinski

Chapter 3

The Forensic Neuropsychiatric Assessment of Traumatic Brain Injury....................................................................................... 43 Robert Granacher

Chapter 4

The Forensic Neuropsychological Evaluation and Report................ 67 Henry V. Soper and Arthur MacNeill Horton, Jr.

Chapter 5

Neuropsychological and Psychological Rehabilitation after TBI.................................................................................................... 91 Fofi Constantinidou

Chapter 6

Legal Issues in Expert Testimony................................................... 119 Daniel A. Bronstein

Chapter 7

The Forensic Examiner as an Expert Witness: What You Need to Know to Be a Credible Witness in an Adversarial Setting........ 141 Joseph A. Davis, Gregory J. Murrey, and Daniel A. Bronstein



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Appendix A Model Outline for the Assessment of Mild Traumatic Brain Injury............................................................................................... 157 Appendix B Select Issues in the Forensic Assessment of Traumatic Brain Injury with Key References from the Research Literature............. 163 Appendix C Listing of State Courts Using Federal Rule 702 or the Daubert Standard........................................................................... 167 Index....................................................................................................................... 169

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Dedication This book is dedicated to Martha, Hope, and the boys.

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List of Tables and Figures Tables Table 1.1 Table 1.2 Table 1.3 Table 1.4 Table 1.5 Table 1.6 Table 2.1 Table 2.2 Table 2.3 Table 2.4 Table 3.1 Table 3.2 Table 3.3 Table 3.4 Table 3.5 Table 3.6 Table 3.7 Table 4.1 Table 7.1 Table 7.2 Table 7.3

Glasgow Coma Scale.............................................................................3 Definition of Mild TBI — Head Injury Special Interest Group of the American Congress of Rehabilitation Medicine.........................4 Galveston Orientation and Amnesia Test (GOAT)...............................4 DSM-IV Research Criteria for Postconcussional Disorder...................7 DSM-IV Diagnoses and Criteria Commonly Used in TBI Cases...........8 Complaints and Symptoms in Mild TBI by Category........................ 18 Elements of Neurologic Diagnosis......................................................26 Elements of the Medical/Neurological History..................................26 Elements of the Neurologic Examination........................................... 27 Diagnostic Studies by Type.................................................................28 General Elements of the Neuropsychiatric History Following Brain Trauma.......................................................................................46 Common Elements of Neuropsychiatric Mental Status Examination........................................................................................ 48 Neurological Examination.................................................................. 50 Structural and Functional Brain Imaging during Neuropsychiatric Assessment............................................................. 52 Common Uses of Structural Brain Imaging....................................... 55 Common Uses of Functional Brain Imaging...................................... 58 Important Records to Review.............................................................. 61 Sample Outline of Sections for the Forensic Neuropsychological Report.................................................................84 Survey Results of Forensic Experts................................................... 143 Average Responses of Forensic Examiners to Specific Survey Questions........................................................................................... 144 Standard Background, Training, and Qualifications of a Forensic Neuropsychologist............................................................................. 147

Figures Figure 4.1 Figure 6.1 Figure 6.2 Figure 6.3 Figure 6.4

Behavior Observation Form................................................................84 Standard Format Template................................................................ 121 Old-Fashioned Courtroom................................................................ 132 Modern Courtroom........................................................................... 132 Ranking Measurement Tool.............................................................. 134

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Preface Over the past two decades, I have seen a drastic increase in the number of traumatic brain injury (TBI) cases that have ended up in the courtroom. As a clinical neuropsychologist who conducts evaluations of persons with suspected brain injuries, I have all too often found myself sitting in a courtroom trying to defend my professional opinion and decisions. I have discovered, along with my colleagues, that to be comfortable or at least confident in such an adversarial system, it is important to be knowledgeable in the entire assessment of TBI and the forensic process involved. Although there have been a myriad of publications on TBI and forensic neuropsychology, I could not find a text available to provide a medical and legal professional with a concise overview of the forensic assessment process and the issues in TBI. Finding such a need, I felt compelled to draw together a group of experts in the medical, neuropsychological, and legal professions to develop such a text. However, the text was not designed as a comprehensive work on forensic neuropsychology, neuropsychiatry, or even TBI, as there are many excellent authoritative texts available on these subjects. Instead, my colleagues and I have designed this test to provide both the clinician involved in forensic examinations and the legal professional involved in personal injury litigation or legal proceedings with a general overview of the issues and assessment process in TBI cases. Accordingly, the text begins with an overview of the key issues involved in the forensic assessment of TBI, including definitions and select medical diagnostic terminology that should be of particular interest to the forensic examiner and legal professional. Subsequent chapters provide an overview of the neurologic, neuropsychiatric, neuropsychological, and psychological forensic assessment process specific to brain injury cases. As part of the revisions to this text, additional chapters have been added, including a chapter on the neuropsychiatric evaluation performed by a clinical or forensic neuropsychiatrist. Although there is a clear overlap between the forensic neurological and neuropsychiatric assessments, there are distinct differences in focus and areas addressed between these two medical specialties and evaluations. Additional chapters expand on the topic of forensic testimony, and on the forensic examiner as an expert witness. Additionally, in the chapters on the forensic examiner as expert witness and expert witness testimony, such issues as qualifications and credibility of the forensic expert and admissibility of expert testimony in TBI cases are reviewed. These chapters will, of course, be of particular interest and concern to the forensic examiner in light of new court rulings and possible modifications to the admissibility of a given forensic examiner’s testimony. Finally, a chapter on neuropsychological rehabilitation issues after traumatic brain injury has been added. Although this chapter does not necessarily address the traumatic brain injury evaluation, it provides critical information for the forensic examiners and other professionals within the forensic setting with regard to rehabilitation treatments or services that may be beneficial to or required for persons xi

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who have suffered traumatic brain injuries. Such information may be critical in TBI litigation as the type of treatment (possibly ongoing) and duration thereof are often essential information within such cases. The contributors of this book have also attempted to provide clinically useful and practical tables and reference pages that can be used by forensic examiners and legal professionals involved in TBI cases. It is my hope as editor that this text will be a useful resource and overview for clinicians and legal professionals alike. Gregory J. Murrey Brainerd, Minnesota

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Acknowledgments This text would not have been possible without the dedication and diligence of Amanda Gangl and Arlene Jones, whose excellent organizational, technical writing, and proofreading skills were critical in its development.

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About the Editors Gregory J. Murrey, Ph.D., A.B.P.N., received his doctorate in clinical psychology from Washington State University and completed his specialty training in neuropsychology at Duke University Medical Center. He has been named Diplomate in Clinical Neuropsychology from the American Board of Professional Neuropsychology and also holds a Diplomate from the American Board of Forensic Examiners. He is currently on the faculty in the Graduate School of Psychology, Fielding Graduate School, and has served as the director of Neuropsychology and Neurobehavioral Services at the Minnesota Neurorehabilitation Hospital in Brainerd, Minnesota. He is also a consulting neuropsychologist at the Polinsky Medical Rehabilitation Center in Duluth, Minnesota, and at St. Josephs Medical Center in Brainerd, Minnesota. Dr. Murrey has published and presented widely in the area of traumatic brain injury and has served as an expert witness in forensic neuropsychology in a myriad of civil and criminal cases related to traumatic brain injury. Donald T. Starzinski, M.D., Ph.D., has had the privilege of extensive training in both Western and Eastern Medicine. After completing a baccalaureate degree summa cum laude, he earned a doctorate in psychopharmacology; receiving his Ph.D. from the University of Minnesota before pursuing further medical studies. After completing work for his M.D. degree, also at the University of Minnesota, Dr. Starzinski completed a neurology residency and received certification from the American Board of Neurology and Psychiatry. Continuing Western medical education includes educational offerings through the American Academy of Neurology, to which Dr. Starzinski has belonged since 1982. Study of traditional Chinese medicine was made possible by a Bush Medical Fellowship, prominently involving training directed by Dr. Tsun-Nin Lee in San Francisco. Through affiliations, including the Academy of Pain Research, the University of California, and St. Luke’s hospital in San Francisco, Dr. Starzinski has studied traditional Chinese medicine involving work in acupuncture, herbal medicine, and Qigong. Dr. Starzinski’s career has included private practice in neurology at the Mankato Clinic as well as work as the clinical director of the Minnesota Neurorehabilitation Hospital. More recently, Dr. Starzinski has integrated his practice of medicine to combine knowledge of both Eastern and Western Medicine. Current clinical interests most prominently include neurological and psychiatric conditions and wellness.

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Contributors Daniel A. Bronstein, J.D. Professor, College of Agriculture & Natural Resources Michigan State University East Lansing, Michigan

Robert Granacher Jr., M.D., D.F.A.P.A. President and Executive Director Lexington Forensic Institute Lexington, Kentucky

Fofi Constantinidou, Ph.D. Professor and Director NeuroCognitive Disorders Laboratory Department of Speech Pathology and Audiology Miami University Oxford, Ohio and Associate Professor University of Cyprus Nicosia, Cyprus

Arthur MacNeill Horton, Jr. Psych Associates of Maryland Towson, Maryland

Joseph A. Davis Center for Applied Forensic Behavioral Sciences San Diego, California

Gregory J. Murrey Minnesota Neurorehabilitation Hospital Brainerd, Minnesota Henry V. Soper Faculty, School of Psychology Fielding Graduate University Santa Barbara, California and Developmental Neuropsychology Laboratory Ventura, California

Donald T. Starzinski Minnesota Neurorehabilitation Hospital Brainerd, Minnesota

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1

Overview of Traumatic Brain Injury Issues in the Forensic Assessment Gregory J. Murrey

Contents 1.1

Definitions and Criteria for TBI.......................................................................1 1.1.1 Level of Consciousness.........................................................................2 1.1.2 Posttraumatic Amnesia.........................................................................3 1.1.3 Alteration in Mental Status................................................................... 5 1.2 Diffuse Axonal Injury Due to Traumatic Brain Injury....................................7 1.3 Estimation of Premorbid Intelligence and Functioning................................. 10 1.4 Postinjury Emotional Functioning and Personality Assessment Issues........ 12 1.5 Assessment of Executive Control Dysfunctions and Impaired Awareness Following Brain Injury................................................................ 15 1.6 Special Assessment Considerations in Mild TBI Cases................................ 17 References................................................................................................................. 19

1.1  Definitions and Criteria for TBI The incidence of brain injury in the U.S. has been estimated to be in excess of 10 million new cases each year (Hartlage, 1990). Approximately 1.5 million Americans sustain head injuries requiring medical attention each year, with roughly half of these requiring hospitalization as a result (Davis, 1990). The incidence of traumatic brain injury (TBI) in the U.S. continues to grow despite many state and national prevention initiatives. Both the medical professional community and the lay population have become increasingly aware of the prevalence of traumatic brain injury and, to some degree, its clinical sequelae. Even more relevant to the readers of this text is the fact that a number of lawsuits and forensic cases related to traumatic brain injury have increased exponentially over the past decade. Certainly the TBI caseload percentage of neuropsychologists and select neurologists has also increased dramatically. The purpose of this chapter is thus to provide a general overview of the forensic assessment issues in cases of traumatic brain injury. The etiologies of TBI are quite varied, but include motor vehicle accidents, falls, on-the-job injuries, and assault. In the forensic evaluation, it is critical for clinical and legal professionals to 

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have a clear set of criteria for and definition of TBI. In the medical, neuropsychological, and legal literature, there are a variety of definitions and criteria set forth on the matter of TBI; however, existence and severity of a TBI are usually established by the following (Evans, 1992; Esselman and Uomoto, 1995):

1. The occurrence and period of loss of consciousness 2. The degree of loss of memory for events immediately before or after the accident 3. The degree and duration of alteration in mental state at the time of the accident 4. The degree of focal neurological deficits (which may or may not be transient)

It needs to be emphasized that in both the research and clinical settings, various definitions and criteria continue to be used for specific diagnosis and classification of traumatic brain injury. Both standardized and less formalized methods are used as part of the classification and identification of such. Some of the more commonly used assessment tools and clinical terminology in the diagnosis and classification of traumatic brain injury are discussed in later sections of this chapter. It should also be remembered that, depending on the setting and clinician making the diagnosis, other terms may be used in lieu of traumatic brain injury. Other terms or diagnoses equivalent to traumatic brain injury may include closed head injury (CHI), concussion, head trauma, or brain trauma. Finally, a variety of factors may help to predict prognosis of recovery following traumatic brain injury. The most common psychosocial factors affecting the prognosis and recovery outcome after TBI include the following:

1. Age at TBI onset (older clients tend to show poorer recovery prognosis) 2. History of previous brain injury or neurological impairments 3. Premorbid intellectual, academic, and vocational functioning 4. History of chemical abuse 5. Premorbid history of psychiatric disorder 6. Premorbid history of cognitive dysfunction

1.1.1  Level of Consciousness Level of consciousness is most commonly assessed by medical or emergency personnel using the Glasgow Coma Scale (GCS) soon after the injury (Teasdale and Jennett, 1974; see Table 1.1). The GCS formally and objectively assesses eye, motor, and verbal responses to various external stimuli. Total GCS scores range from 3 (no response to stimuli) to 15 (normal response to stimuli), and GCS scores of 13 to 15 are considered to be within the normal range of functioning. The definition and criteria for mild TBI, as established by the American Congress of Rehabilitation Medicine (1993; see Table 1.2), do not require a loss of consciousness. However, loss of or change in level of consciousness postinjury does provide the medical professional or other clinician with important information that is helpful in determining the existence and severity of a brain injury.

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Table 1.1 Glasgow Coma Scale (Recommended for Ages 4 to Adult) Eyes Score Open Spontaneously To verbal command To pain No response

4 3 2 1

Best Motor Response To Verbal Command Obeys

6

To Painful Stimulus Localizes pain Flexion — withdrawal Flexion — abnormal Extension No response

5 4 3 2 1

Best Verbal Response Oriented and converses Disoriented and converses Inappropriate words Incomprehensible sounds No response

5 4 3 2 1

GCS Total

3–15

Source: Adapted from Teasdale, G. and Jennett, B., Lancet, 2, 81–84, 1974. With permission.

1.1.2  Posttraumatic Amnesia Another important criterion to be considered in the assessment of TBI is the level of posttraumatic amnesia (PTA), which refers to the loss of memory for events immediately before or after the accident, and typically includes an inability or reduced ability to effectively process information or stimuli (visual or otherwise) postinjury. The level and duration of PTA can certainly correlate with the degree of loss of consciousness; however, the existence and duration of PTA can be difficult to determine. A formal, semi-standardized method of assessing PTA is the Galveston Orientation and Amnesia Test (GOAT) (Levin et al., 1979; see Table 1.3). The GOAT quickly screens a patient’s orientation to self, place, and time as well as assesses the existence and degree of anterograde (postinjury) and retrograde (prior to the injury) amnesia (memory loss or memory processing deficit). Scores on the GOAT range from 0 to 100, with 76 to 100 within the normal range and 65 or lower in the impaired range. Although the GOAT is a commonly known and utilized instrument

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Table 1.2 Definition of Mild TBI — Head Injury Special Interest Group of the American Congress of Rehabilitation Medicine A patient with mild brain injury is a person who has had a traumatically induced physiological disruption of brain function as manifested by at least one of the following:   • Any period of loss of consciousness   • A loss of memory for events immediately before or after the accident   • Any alteration in mental status at the time of the accident (e.g., feeling dazed, disoriented, or confused)   • Focal neurological deficit(s) that may or may not be transient, but where the severity of the injury does not exceed the following: (a) Loss of consciousness of approximately 30 minutes or less (b) After 30 minutes and initial Glasgow Coma Scale of 13 to 15 (c) Posttraumatic amnesia not greater than 24 hours Source: Adapted from American Congress of Rehabilitation Medicine, J. Head Trauma Rehabilitation, 8, 86–87, 1993. With permission.

Table 1.3 Galveston Orientation and Amnesia Test (GOAT) 1. What is your name? Where do you live? 2. Where are you now? City ____________ Hospital ____________ (unnecessary to state name of hospital) 3. On what date were you admitted to this hospital? How did you get here? 4. What is the first event you remember after the injury? Can you describe in detail (i.e., date, time, companions) the first event you can recall after the injury? 5. Can you describe the last event you recall before the accident? Can you describe in detail (i.e., date, time, companions) the first event you can recall before the injury? 6. What time is it now? 7. What day of the week is it? 8. What day of the month is it? 9. What is the month? 10. What is the year? Source: Adapted from Levin, H.S. et al., J. Nervous Mental Disorders, 167, 675–684, 1979. With permission

among ­neuropsychologists who work in acute rehabilitation settings, it is not commonly used by medical professionals. Thus, the forensic examiner must often rely on somewhat subjective reports (after the fact) of family members and observers or even the injured person. When it is used, the GOAT is typically administered in the emergency room or other acute medical setting to individuals suspected of having suffered a brain injury. It is important for the examiner to determine if there was any indication of PTA and to arrive at a gross estimate of the period of PTA. It is not so

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critical or typically possible to determine the exact number of minutes or hours of PTA. Rather, it is important for the examiner to determine if (1) there was a period of PTA and (2) if the duration was less or more than 24 hours.

1.1.3  Alteration in Mental Status Alteration in mental status, often described by the injured party as feeling dazed, disoriented, or confused at the time of the accident, can at times be formally observed and documented by emergency or medical personnel at the scene of the accident or in the emergency room. Assessment of alteration in mental status is particularly important in mild TBI cases. Yet, such alterations are most commonly reported only by the patient/injured person after the fact. Even though an alteration in mental status has not been formally documented by an outside observer, the forensic examiner should not and cannot conclude that it did not occur. The alteration or transient change in mental status could be momentary and may have resolved (at least to some degree) before the arrival of a reliable observer or examiner (e.g., law enforcement or emergency medical personnel). However, the duration and extent of alteration in a person’s mental state postinjury certainly should be considered by the forensic examiner and typically correlates with the severity of the injury. Focal neurological deficits, typically assessed by technical neuroimaging studies such as magnetic resonance (MR) images, computed tomography (CT) scans, electroencephalogram (EEG) studies, and, on rare occasions, positron emission tomography (PET) scans (see Chapters 2 and 3 for further discussion on these technologies), need to be considered in determining the existence and severity of a TBI. Medically documented neurological deficits are not required criteria for the existence or occurrence of TBI, although such technologies as MRI and CT scans are invaluable in its assessment. However, both of these technologies are limited and may be insensitive to abnormalities or functional deficits after brain injury (Wilson and Wyper, 1992). In fact, it is not uncommon for persons who have suffered a mild brain injury to have normal CT and MRI scans, which argues for the importance of the functional (neuropsychological) assessment in such cases. A prime example of the limitations of CT and MRI scans as well as the often lack of correlation between such neuroimaging studies and neuropsychological results is the research data in the area of persons with Alzheimer’s disease. The majority of persons diagnosed with mild to moderate Alzheimer’s disease who present with clear neurobehavioral and neuropsychological dysfunctions and deficits often have normal CT or MRI scans, whereas many “normal” functioning (neuropsychologically and neurobehaviorally speaking) elderly persons have abnormal CT or MRI scans (Thatcher et al., 1997; Gonzales et al., 1978; Eslinger et al., 1984; Hatazawa et al., 1981; De Leon, 1997; Bird et al., 1986). Newer and more sophisticated technologies and procedures such as PETs and functional MRIs (fMRIs) are proving to be more sensitive to neuropsychological changes following TBI and are more highly correlated with neuropsychological findings (Ruff et al., 1989; Gale et al., 1995). In fact, it was once commonly believed and accepted within the medical field that once a TBI person is out of the acute recovery stage, there should be no further decline in cognitive functioning or adverse change

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in neuroanatomical or neurophysiological systems; however, more recent research using PET studies has actually demonstrated that cerebral atrophy (shrinkage) may occur as a result of cellular damage, but may not be able to be observed clinically until at least 6 to 9 months postinjury. Newer research also suggests that mildly brain injured persons with evidence of neurological deficits or documented focal lesions (e.g., more complicated mild head injuries) may actually have poorer functional outcomes (Williams et al., 1990) than those without such deficits or lesions. The term concussion is commonly used by medical professionals and often corresponds with the diagnosis of mild or moderate brain injury. According to the International Classification of Disease, 9th revision (ICD-9; Medicode, Inc., 1998), a concussion is a “transient impairment of function as a result of a blow to the brain,” which can include brief, moderate, or prolonged loss of consciousness, “with or without return to pre-existing conscious level.” Another term important for the legal and medical professional to understand is postconcussional syndrome or disorder. This term is commonly used by treating and consulting physicians and is typically seen in the medical documentation of persons who have suffered or are suspected of having suffered a mild TBI. The term infers the existence of chronic or ongoing cognitive, physical, and social/functional impairment as a result of a TBI (or more specifically, a significant cerebral concussion). Table 1.4 outlines the research criteria found in Appendix B of the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV; American Psychiatric Association, 1994). Note that this is labeled as “research criteria,” as the task force reviewing these specific criteria at that time determined that “there was insufficient information to warrant inclusion [of the proposals] as official categories or axes in the DSM-IV.” DSM-IV diagnoses that can be used for persons presenting with postinjury cognitive or emotional impairment (transient or permanent) include dementia due to head trauma, amnestic disorder, cognitive disorder not otherwise specified, delirium due to a general medical condition (TBI), personality change due to TBI, mood disorder due to a general medical disorder, and anxiety disorder due to a general medical disorder. (See also Table 1.5 for a listing of the DSM-IV diagnostic criteria for each of these diagnoses.) A final term that should be reviewed here is closed head injury (CHI), and how it is similar to and different from the term traumatic brain injury. According to the International Classification of Disease, 9th revision (ICD9; Medicode, Inc., 1998), Section 907, a closed head injury is defined as the “late effects of inter-cranial injury without mention of skull fracture.” Thus, the terms closed head injury and TBI are standardly used interchangeably in the field of neuropsychology. It would also be important for the medical and legal professional to be aware of any definitions of TBI within his or her respective state statutes that may be applicable to a given case. For example, Minnesota has a statutory definition of mild TBI (see Minnesota Statute 144.661). In summary, it is important for a professional conducting the forensic assessment to be knowledgeable in the varied and often conflicting definitions and criteria applied to a TBI (particularly mild TBI). The examiner should also be clear on the definition or criteria that he or she is applying to determine the existence or severity of a TBI, and should be able to defend the decision to use that particular definition.

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Table 1.4 DSM-IV Research Criteria for Postconcussional Disorder A. The history of head trauma that has caused significant cerebral concussion. Note: The manifestations of concussion include loss of consciousness, posttraumatic amnesia, and, less commonly, posttraumatic onset of seizures. The specific method of defining this criterion needs to be established by further research. B. Evidence from neuropsychological testing or quantified cognitive assessment of difficulty in attention (concentrating, shifting focus of attention, performing simultaneous cognitive tasks) or memory (learning or recalling information). C. Three or more of the following occur shortly after the trauma and last at least 3 months: 1. Becoming fatigued easily 2. Disordered sleep 3. Headache 4. Vertigo or dizziness 5. Irritability or aggression on little or no provocation 6. Anxiety, depression, or affective lability 7. Changes in personality (e.g., social or sexual inappropriateness) 8. Apathy or lack of spontaneity D. The symptoms in criteria B and C have their onset following head trauma, or else represent a substantial worsening of preexisting symptoms. E. The disturbance causes significant impairment in social or occupational functioning and represents a significant decline from a previous level of functioning. In school-aged children, the impairment may be manifested by a significant worsening in school or academic performance dating from the trauma. F. The symptoms do not meet criteria for dementia due to head trauma and are not better accounted for by another mental disorder (e.g., amnesic disorder due to head trauma, personality change due to head trauma). Source: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association, Washington, DC, 1994. With permission.

It is also necessary for the examiner to address the definition and criteria applied by other medical professionals involved in a particular brain injury case.

1.2  Diffuse Axonal Injury Due to Traumatic Brain Injury Over the past 5 to 7 years, a newer and very important area of research related to traumatic brain injury has surfaced on diffuse axonal injury (DAI) (Wallesch et al., 2001a; Meythaler et al., 2001). Research on DAI is still somewhat in its infancy, and definitions of DAI still very widely; however, per the literature, DAI is most typically referred to as widespread (vs. a clear focal lesion) axonal damage in the brain resulting in microbleeds in slight neuroanatomical areas of the brain with corresponding cognitive and functional impairment (Meythaler et al., 2001; Scheid et al., 2006; Fork et al., 2005). Only recently has DAI begun to be clinically assessed after traumatic brain injury, and only within select medical settings such as in regional trauma centers or specialized clinics and hospitals. DAI is not yet a specific ­diagnosis or

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Table 1.5 DSM-IV Diagnoses and Criteria Commonly Used in TBI Cases DSM-IV Criteria for Dementia Due to Head Trauma A. Disturbance of consciousness (i.e., reduced clarity of awareness of the environment) with reduced ability to focus, sustain, or shift attention. B. A change in cognition (such as memory deficit, disorientation, or language disturbance) or the development of a perceptual disturbance that is not better accounted for by a preexisting, established, or evolving dementia. C. The disturbance develops over a short period (usually hours to days) and tends to fluctuate during the course of the day. D. There is evidence from the history, physical examination, or laboratory findings that the disturbance is caused by the direct physiological consequences of a general medical condition (TBI). DSM-IV Criteria for Dementia Due to Other General Medical Conditions A. The development of multiple cognitive deficits manifested by both (1) memory impairment (impaired ability to learn new information or to recall previously learned information) and (2) one (or more) of the following cognitive disturbances: (1) Aphasia (language disturbance) (2) Apraxia (impaired ability to carry out motor activities despite intact motor function) (3) Agnosia (failure to recognize reality or identify objects despite intact sensory function) (4) Disturbance in executive functioning (e.g., planning, organizing, sequencing, and abstracting) B. The cognitive deficits in criteria A1 and A2 each cause significant impairment in social or occupational functioning and represent a significant decline from a previous level of functioning. C. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of one of these general medical conditions: dementia due to HIV disease, head trauma, Parkinson’s disease, Huntington’s disease, Pick’s disease, Creutzfeldt– Jakob disease, or TBI. D. The deficits do not occur exclusively during the course of a delirium. DSM-IV Criteria for Amnestic Disorder Due to (Indicate General Medical Condition) A. The development of memory impairment is manifested by impairment in the ability to learn new information or the inability to recall previously learned information. B. The memory disturbance causes significant impairment in social or occupational functioning and represents a significant decline from a previous level of functioning. C. The memory disturbance does not occur exclusively during the course of a delirium or a dementia. D. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of a general medical condition (including physical trauma). DSM-IV Criteria for Cognitive Disorder Not Otherwise Specified This category is for disorders that are characterized by cognitive dysfunction presumed to be due to the direct physiological effect of a general medical condition that does not meet criteria for any of the specific deliriums, dementia, or amnestic disorders listed in this section that are not better classified as delirium not otherwise specified, dementia not otherwise specified, or amnestic disorder not otherwise specified. For cognitive dysfunction due to a specific or unknown substance, the specific substance-related disorder not otherwise specified category should be used. Examples include: (1) Mild neurocognitive disorder: Impairment in cognitive functioning as evidenced by neuropsychological testing or quantified clinical assessment, accompanied by objective evidence or a systemic general medical condition or central nervous system dysfunction. (2) Postconcussional disorder: Following a head trauma, impairment in memory, or attention with associated symptoms.

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Table 1.5 (continued) DSM-IV Diagnoses and Criteria Commonly Used in TBI Cases DSM-IV Criteria for Personality Change Due to TBI A. A persistent personality disturbance that represents a change from the individual’s previous characteristic personality pattern. (In children, the disturbance involves a marked deviation from normal development or a significant change in the child’s usual behavior patterns lasting at least 1 year.) B. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of a general medical condition. C. The disturbance is not better accounted for by another mental disorder (including mental disorders due to a general medical condition). D. The disturbance does not occur exclusively during the course of a delirium and does not meet criteria for a dementia. E. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM-IV Criteria for Mood Disorder Due to TBI A. A prominent and persistent disturbance in mood predominates in the clinical picture and is characterized by either or both of the following: (1) Depressed mood or markedly diminished interest or pleasure in all, or almost all, activities (2) Elevated, expansive, or irritable mood B. There is evidence from the history, physical examination, or laboratory findings that the disturbance is the direct physiological consequence of a general medical condition. C. The disturbance is not better accounted for by another mental disorder (e.g., adjustment disorder with depressed mood in response to the stress of having a general medical condition). D. The disturbance does not occur exclusively during the course of a delirium. E. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Source: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association, Washington, DC, 1994.

commonly used term, and thus is not typically used in local hospitals or clinics (even by many neurologists in smaller geographic regions). Although much more research is needed in this area, DAI is now being diagnosed through CT and MRI scans in select clinical settings (Fork et al., 2005; Wallesch et al., 2001; Cook, 2001a; Anderson et al., 1996). However, some researchers argue that DAI is “still extremely difficult to detect noninvasively and is poorly defined as a clinical syndrome” (Smith et al., 2003). The still somewhat limited research suggests that DAI affects areas of the frontal and temporal lobes, resulting in corresponding executive and memory dysfunction (Wallesch et al., 2001b; Scheid et al., 2006). Specific cognitive deficits resulting from DAI reported in the research include impairments in information processing speed, attention and concentration, psychomotor speed, short-term memory, abstract reasoning, working memory, mental selection ability, and problem solving (Felmingham et al., 2004; Wallesch et al., 2001b; Fork et al., 2005). Because DAI causes “diffuse” injury as opposed to a prominent focal lesion or injury, such cognitive deficits may be more mild or subtle in nature and more varied by individual.

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Although there is still a fair amount of debate on the subject, many researchers do believe that DAI can result even in mild traumatic brain injury (Wallesch et al., 2001b). The following is a list of neuroimaging and neuropsychological indicators of possible DAI after traumatic brain injury:

1. CT diagnostic criteria of DAI a. Single or multiple small hemorrhages in the cerebral hemispheres (<2 cm in diameter) b. Intraventricular hemorrhage c. Hemorrhage in the corpus collosum d. Small focal areas of hemorrhage adjacent to the third ventricle (<2 cm in diameter) e. Brain stem hemorrhage 2. Neuropsychological impairments a. Speed of information processing b. Attention and concentration c. Psychomotor speed d. Short-term memory e. Abstract reasoning f. Working memory g. Mental selection ability h. Problem solving 3. Behavioral symptoms a. Dysinhibited or impulsive behaviors b. Aggression or other disruptive behaviors c. Inability to perform activities of daily living (ADLs), such as self-care and hygiene skills d. Other inappropriate social behaviors

Of the research to date on DAI, the majority of studies looking at outcome and recovery of persons meeting the criteria for DAI have shown a poorer outcome in DAI persons than in those with simple focal lesions from a brain injury. In summary, DAI is a syndrome just now moving from the pure research stage into the clinical realm. However, as a clinical syndrome, it is being assessed for and diagnosed in select clinical settings, although not yet widely understood or acknowledged (especially among smaller, local hospitals or medical clinics). However, the limited research conducted thus far does support the clinical (and possibly forensic) assessment for DAI symptoms and presentations.

1.3  Estimation of Premorbid Intelligence and Functioning Obviously, a key issue in the forensic assessment of persons with TBI is the determination if, and to what extent, cognitive or functional change has occurred. In such a determination, an ideal situation, of course, would be to have available to the examiner results of neuropsychological or intelligence tests administered prior to the

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injury. However, such data are rarely available to the examiner, as these tests are not routinely administered to normal functioning individuals in academic or other settings. When such preinjury data are not available, the forensic examiner (specifically the neuropsychologist) must estimate the premorbid IQ and cognitive functioning level of the examinee so as to be able to make a comparison with the current evaluation data or test results. Four methods are typically used by neuropsychologists to estimate premorbid functioning:



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1. Review of preinjury academic and occupational records and history (including military records, if available). Evaluation of school records, including secondary and postsecondary transcripts and grade reports, can aid the neuropsychologist in making a professional opinion regarding the examinee’s preinjury gross intellectual and cognitive functioning level. Such information, combined with occupational history, such as type of positions held (e.g., technical or management-level positions), educational level achieved (including postsecondary training, courses, or degrees completed), and military training in specialized technical or professional areas, can provide the examiner with important data with which to support a given opinion of the examinee’s general abilities prior to the injury. Of course, an exact IQ level cannot be ascertained from such history, but an opinion as to whether the examinee was at, above, or below the normal (average) functioning level can be typically established. 2. Use of reading and vocabulary test scores. Certain intellectual and cognitive function tests have been found to have a high sensitivity to brain injury or neurological impairment (see Chapter 3 for an in-depth review of such tests), whereas other tests, namely, certain reading or vocabulary type tasks, have been found to have a very low sensitivity to brain impairment (Blair and Spreen, 1989; Crawford, 1992; Wines et al., 1993) — particularly when speech/language functions have not been significantly impaired as a result of the injury. For example, the vocabulary subtest on the Wechsler Intelligence Scales (Psychological Corporation, 1997) has little to no correlation with neurological impairment; thus, persons with brain injury or other neurological insult (including Alzheimer’s dementia) will typically show little to no significant decline in performance on this test. Likewise, normal aging with the associated (expected) cognitive decline will have little effect on a given individual’s performance on this type of test. Therefore, performance on these tests can be used to estimate preinjury verbal intellectual abilities. Two additional tests that have been effectively used to estimate premorbid intelligence in neurologically impaired patients are the Wide Range Achievement Test — Revised (WRAT-R) (Jastak and Wilkenson, 1984) and the North American Adult Reading Test (NAART) (Blair and Spreen, 1989). Both are considered reading screening tests but, more accurately, are tests of word pronunciation. Although reading comprehension and memory can decline significantly after neuropsychological impairment, word pronunciation and vocabulary abilities are much less sensitive to brain injury. Both the NAART and the WRAT-R can be useful

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to the examiner in estimating premorbid intellectual functioning, although the WRAT-R has been found to provide a slightly more accurate estimate and is a “preferred measure of premorbid verbal intelligence” (Johnstone et al., 1996). It should be noted, however, that both the WRAT-R and the NAART may tend to underestimate higher intelligence ranges and overestimate lower intelligence ranges (Wines et al., 1993; Johnstone et al., 1996; Barry et al., 1994). 3. Use of demographic-based indexes. Statistical formulas based on intelligence test scores, education, and occupational history have been used to develop demographic-based indexes for estimating preinjury IQ levels. The Barona Index (Barona et al., 1994) for the Wechsler Adult Intelligence Scales has been used quite frequently by neuropsychologists in the past. However, with the revision of the Wechsler scales, there is currently no prediction formula for the new instrument, and thus, such an approach is now less likely to be used by an examiner. Additionally, with the new research on the efficacy and utility of the WRAT-R or NAART approaches in estimating premorbid IQ, such demographic-based approaches are, in general, being used less (Karaken et al., 1995). 4. Use of highest test scores of current neuropsychological evaluation. In this approach, the professional examiner uses the highest or average of the highest scores on the neuropsychological or intelligence tests (which are assumed to represent relatively intact or unaffected functions) as a gross estimate of premorbid or preinjury functioning (even though such an approach is not based on a statistical formula per se). One common example of use of this method is to compare the performance IQ and verbal IQ subtest scores on the Wechsler Intelligence Test (see Chapter 3 for a complete discussion of the Wechsler Adult Intelligence Scale, 3rd revision (WAIS-III)). The logic behind such an approach is quite obvious in that: a. Normative data used in standardized neuropsychological testing take into account individualized strengths and weaknesses; thus, for an individual to perform outside of the normal range or to have a significant difference between test scores is statistically and often clinically quite rare (suggesting a decline or impairment in that selected functional area) b. The highest scores from tests are often viewed as a reflection of the examinee’s actual or highest attained cognitive abilities. Typically, the examiner should and does use a combination of these various approaches to estimate preinjury functioning.

1.4  Postinjury Emotional Functioning and Personality Assessment Issues Emotional disturbance and personality changes following or secondary to the brain injury can often complicate the forensic assessment process in TBI cases. The medical and psychological examiners need to assess for the presence of any psychological sequelae such as posttraumatic depressive or anxiety symptoms. Such an

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a­ ssessment can be quite complicated, as many symptoms related to depression can mimic or even confound postconcussional symptoms (Rosenthal et al., 1998; Busch and Alpern, 1998; Klonoff et al., 1993). Additionally, postinjury depression, anxiety, or stress disorder can adversely affect a person’s cognitive functioning (at least in a transient manner) in such areas as attention, concentration, speed of processing, memory and learning performance, and psychomotor functioning. Thus, it is often difficult for the examiner to reliably determine if specific symptoms or symptom profiles are due to an actual brain injury or an emotional disturbance (see Chapter 4 for a more complete discussion of psychological symptoms and assessment). Certainly, such symptoms could be related to both an actual postconcussional syndrome and an emotional disturbance secondary to the injury — which is often the case (Rosenthal et al., 1998). Rosenthal’s recent review of the literature on depression and brain injury suggests a high incidence of depression following brain injury (much higher than is found in the general population). These research studies have found incidence rates of post-TBI depression anywhere between 33 and 66%. In fact, onset of the depressive symptoms often may not occur until several months postinjury, which may be due (in part) to increased insight or awareness of the deficit, or losses or changes in the person’s support system such as family members, work, or financial status (Prigatano and Altman, 1990; Sherer et al., 1998a; Rosenthal et al., 1998; Prigatano and Klonoff, 1997). At any rate, it is often quite difficult for the examiner to determine if a particular cognitive or emotional presentation is a direct or indirect symptom of the injury. In regard to depression, for example, injury to the brain may damage or affect the neurophysiology of the brain, resulting in an “organic-based” mood or depressive disorder (associated with neurochemical changes that affect emotional modulation), which would be a direct symptom of TBI; conversely, an individual may suffer a reactive or posttraumatic type of depression, which is not a direct effect of injury to the brain, but a reaction to suffering a trauma or experiencing a loss or change in one’s life. This latter condition would be an indirect symptom of the injury. Of further complication is the issue of a preexisting emotional or psychological disturbance. The examiner needs to review and consider any history of preexisting psychological disturbance and determine if, and to what extent, the injury may have influenced or exacerbated the preexisting condition. Legal and medical professionals need to understand that TBI typically exacerbates (worsens) preexisting affective and cognitive conditions. For example, a person may have had a predisposition for clinical depression or an anxiety disorder, which then becomes more pronounced or problematic and even less responsive to traditional treatments (such as antidepressant or antianxiety medications) after TBI. An additional issue that must be addressed by the medical and legal examiner is the effect of litigation on affective, cognitive, and somatic complaint or symptom presentation. Some research suggests that persons claiming to have suffered a mild TBI and who are going through litigation report more affective and physical symptoms than persons not involved in litigation (Sherer et al., 1998; Lees-Haley and Brown, 1993; Lees-Haley, 1989, 1990; Lees-Haley and Fox, 1990). Researchers, as well as clinicians, often conclude from such data that persons going through litigation typically exaggerate their symptoms, and thus may actually be malingering. However, professionals should be cautious in making such

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a conclusion, as this research is correlational and not causal; that is, a cause-andeffect relationship cannot be concluded from such research — the medical or legal professional could equally argue that persons in litigation may actually have severe cognitive or emotional impairment as a result of the injury that has resulted in their seeking compensation for such injuries. Interestingly, many researchers have not found differences in symptom presentation between litigants and nonlitigants (Dikman et al., 1995). A corresponding issue, of course, is the assessment of malingering, which will be further elaborated on in Chapters 3 and 4. Assessment of malingering or secondary gain can be quite problematic in that the definition of malingering is “the intentional production of false or grossly exaggerated symptoms” (DSM-IV, 1994, p. 683), and to truly be able to determine a given individual’s intentions, the legal or medical professional would have to be able to read that person’s mind. An additional problem in the assessment of malingering or “incomplete effort” (Denney, 1999; Binder, 1993; Bernard et al., 1993) is that a majority of the research conducted thus far was (1) with college students or other subjects who were coached or instructed to attempt to feign particular symptoms (Binder, 1993; Franzen et al., 1990; Iverson et al., 1990), or (2) comparing symptom profiles or neuopsychological test performances of litigants and nonlitigants in personal injury cases (Franzen et al., 1990; Frederick et al., 1995; Scott et al., 1999; Mittenberg et al., 1993). From the latter, researchers have often made assumptions regarding the causality between involvement with litigation and increased symptom report/presentation (as earlier discussed in this chapter). This author is not aware of any reputable or replicated study in which “known postinjury malingerers” were studied. Although the Minnesota Multiphasic Personality Inventory, 2nd revision (MMPI2) (Butcher et al., 1989) will be discussed at length in Chapter 4, a brief discussion here of this instrument is in order, particularly regarding the issues of psychological assessment of postinjury emotional status and malingering. Clearly, the MMPI-2 is not designed as an instrument to assess brain injury, or any type of injury for that matter (although some researchers have attempted to assess its utility as such). It is important to emphasize that the normative sample for the MMPI-2 included normal (healthy) control subjects and mentally ill subjects. Thus, the validity of such a test with medical patients, particularly traumatic brain injured persons, should be of concern for the medical and legal professionals involved in such cases. Unfortunately, many clinicians (namely, psychiatrists and psychologists) quite commonly apply the standard textbook interpretations to the results and data, which may clearly not be relevant to this specific medical population. This, of course, becomes problematic in a forensic (legal) setting, as two or more psychiatric professionals may actually come to the same or similar conclusions based on the textbook interpretations — both of which may not in fact be valid. Perhaps the best word to describe the research on the use of the MMPI with persons with neurological disorders (including TBI) is inconclusive. For example, several researchers have suggested the use of a “neurocorrection factor” (Levin et al., 1997; Alphona et al., 1990; Gass, 1991) with profiles of persons with (or suspected of having) neurologic impairment; however, other researchers argue against such an approach, supporting the standard scoring and interpretation of the MMPI2 with such populations (Scott et al., 1999; Lees-Haley, 1991). Several reputable

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s­ tudies have consistently ­demonstrated elevations on specific MMPI-2 clinical scales and profiles in traumatically brain injured persons. For both the mildly and severely brain injured populations, the Depression and Schizophrenia scales are often elevated (Paniak and Miller, 1993; Bachna et al., 1998; Peck et al., 1993). Thus, this “abnormal” profile may possibly be the norm for this particular population (which is analogous and in some ways similar to other medical populations, such as chronic pain patient populations; see Butcher et al., 1989). Nevertheless, clinicians should be very cautious in applying textbook interpretations of the MMPI-2 with persons with suspected brain injury. Clearly, there is research, although inconsistent in the literature, that suggests that persons going through personal injury litigation show higher elevations on the MMPI-2 profiles than nonlitigants (Lees-Haley, 1991; Scott et al., 1999; Youngjohn et al., 1997). It would, however, be absurd for the clinician to either conclude (though some have done so) that such elevations are evidence of a particular premorbid personality or (as discussed previously in this chapter) conclude solely from the MMPI-2 profile (even if the MMPI-2 profile is found to be invalid) that the examinee is malingering, although such information can certainly be valuable when considered with all the historical and testing data. An exhaustive discussion of the MMPI-2 is beyond the scope of this section, but it is important to note that although the MMPI-2 is titled a personality (trait) assessment inventory, the profile/results are clearly influenced by the state (medical and emotional) of the examinee at the time of the testing.

1.5  Assessment of Executive Control Dysfunctions and Impaired Awareness Following Brain Injury Although a comprehensive and technical discussion of the executive functions of the brain is beyond the scope of this text, an overview of this issue is certainly important for the clinician and legal professional involved in brain injury cases. Over the past decade, there has been a fair amount of research on the executive functions and the impairment of such following TBI (Stuss and Gall, 1992; Varney and Menefee, 1993; Sherer et al., 1998b). According to Lezak (1993), executive functions can be classified into the following four major areas:

1. Volition, which includes the capacity for awareness of one’s self and surroundings as well as motivational state 2. Planning, which includes the ability to conceptualize potential change, to be objective, to conceive alternatives in decision making, and to conceptually or mentally develop a plan 3. Purposeful action, including the ability to be productive when using self-regulation 4. Performance effectiveness, which is basically quality control or the ability to review and, as needed, modify one’s performance (i.e., an ability to learn from one’s own mistakes)

Understanding disorders of executive functioning, which are typically attributed to or associated with damage to the frontal lobes or regions of the brain (in particular

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the orbital frontal cortex), is critical for the forensic examiner and legal professional in TBI cases. Injury to this particular region of the brain is quite common following TBI (Varney and Menefee, 1993; Stuss and Benson, 1984; Stuss and Gall, 1992) — particularly as a result of a motor vehicle accident. Perhaps one of the least understood (by both medical professionals and laypersons) and more problematic symptoms associated with executive dysfunction is impaired awareness, known as anosognosia (Giacino and Cicerone, 1998; Crisp, 1992; Prigatano and Schacter, 1991). Disorders of awareness following brain injury can be quite problematic, as they are typically not well understood (particularly by family members and caregivers), and they can often significantly impair a person’s functioning — psychosocial, emotional, and behavioral (Prigatano and Fordyce, 1986; Varney and Menefee, 1993). Disordered awareness symptomatology is often described by friends and family members as a “change in personality” in the injured person. These disorders of awareness following TBI can be acute or transient; that is, they may improve or resolve within the first several months following the injury, or they may be more chronic or permanent in nature (Prigatano et al., 1998). Indeed, disorders of awareness post-TBI often can be misdiagnosed as a psychiatric denial state by even experienced psychologists or medical professionals. Although both could certainly occur following a TBI, denial is a psychiatric condition defined by Freud as an “egodefense mechanism” and would be an indirect symptom of an injury, whereas a true anosognosia or awareness disorder is a neurological condition and a direct symptom from the brain injury. Chronic or more permanent anosognosia most often occurs in more severe brain injuries and has been found to significantly and adversely affect the individual’s recovery and rehabilitation therapy outcome (Sherer et al., 1998a; Fleming et al., 1998; Godfrey et al., 1993; Lamb et al., 1988; Willer et al., 1993). The assessment of executive dysfunction and, in particular, anosognosia can be quite complex and very difficult for the forensic examiner, as there are no assessment tools or standardized tests available that are highly sensitive in evaluating these disorders (Prigatano, 1999; Lezak, 1993). Although there are several neuropsychological or cognitive tests that, in part, tap into some of the executive functions, current research on assessment techniques in this area focuses more on functional and behavioral measures such as self or significant other reports (Malec and Thompson, 1994; Prigatano and Klonoff, 1997; Solberg et al., 1998; Heart and Jacobs, 1993). Some common quasi-objective approaches used by neuropsychologists in evaluating frontal lobe dysfunction and anosognosia include the following:

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1. Observation by the professional or caregiver of the subject while performing specific cognitive tasks. 2. Comparison of caregiver ratings of the patient’s abilities with self (examinee) report ratings (Malec and Thompson, 1994; Solberg et al., 1998; Lezak, 1987). Using this approach, the clinician reviews the specific and global difference scores or ratings between the family/caregiver and the TBI client. The larger the difference in ratings of cognitive and psychosocial functioning areas, the more likely the existence of an anosognosia or awareness disorder. Researchers are still collecting normative data to standardize such instruments and improve the clinical utility of such measures.

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3. Comparison of self (examinee) report ratings with ratings by the professional (Malec and Thompson, 1994; Lezak, 1987; Prigatano et al., 1990; Prigatano and Klonoff, 1997). With this approach, a similar analysis process is used by the clinician as described in number 2 above. 4. Comparison of self (examinee) report scales of cognitive functioning with actual neuropsychological tests results. In this method, the objective test results from the neuropsychological evaluation are compared to the patient’s evaluation of his or her own performance or functional ability in those areas tested. Higher levels of discrepancy would again argue for a higher probability of the existence of an anosognosia. 5. Comparison of the TBI client’s prediction of performance (prior to testing) on specific neuropsychological or cognitive tests with the actual test results. In this approach, the examinees are asked to predict how well they will perform on selected neuropsychological tests or tasks; these predictions are then compared to their actual test performance. Higher discrepancy scores would suggest the existence of an anosognosia.

In summary, the assessment of executive functions and awareness disorders following TBI is quite complicated and can be very difficult. However, the assessment of these functions by the clinician is critical, particularly in forensic cases, as executive dysfunction can significantly influence vocational, psychosocial, and functional outcome or recovery postinjury.

1.6  Special Assessment Considerations in Mild TBI Cases An authoritative definition of mild TBI, as developed by the Mild TBI Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine (1993), has already been reviewed at length earlier in this chapter. However, there are some specific issues that need to be considered by the professional when conducting an assessment in a mild TBI case. This brief discussion on the issues particular to mild TBI cases may be beneficial to the reader. It is again important to emphasize that neither loss of consciousness nor a strike to the head is a required criterion for a TBI. Symptoms associated with mild TBI typically fall into three categories: (1) physical symptoms, (2) cognitive deficits, and (3) behavioral changes or alterations in emotional responsivity. Mild TBI has previously been referred to as postconcussion syndrome, minor head injury, traumatic head syndrome, traumatic cephalgia, post-brain injury syndrome, and posttraumatic syndrome. Over the past decade, an enormous amount of research has focused on the assessment of mild TBI (Dikman and Levin, 1983; McCaffrey et al., 1993; Larrabee, 1997; Williams et al., 1990; Binder, 1986; Bohnen and Jolles, 1992). The most common symptoms or complaints of persons who have suffered mild TBI are outlined in Table 1.6. Clearly, such symptoms can be direct (physiogenic) or indirect (psychogenic). Obviously, the issue of malingering discussed elsewhere in this and other chapters is most applicable to mild TBI cases. As has been discussed previously, some studies have shown a correlation between involvement in litigation and increased symptom presentation. However, such has not been consistently shown

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Table 1.6 Complaints and Symptoms in Mild TBI by Category Physical Headache Dizziness Nausea Positional vertigo Noise intolerance Sleep disturbance Blurred or double vision Mental and physical fatigue Poor coordination Reduced alcohol tolerance Cognitive Forgetfulness Slow mental processing Excessive mental and physical fatigue Loses train of thought Poor concentration or distractibility Increased distractibility Emotional/Behavioral Low frustration tolerance Emotional lability Depression Diminished libido Anxiety Sleep disturbance Source: Adapted from Nemeth, A.J., Arch. Clin. Neuropsychol., 11, 677–695, 1996; Larrabee, G., Semin. Clin. Neuropsychiatry, 2, 196–206, 1997. With permission.

throughout the research; for example, in a study of the outcome 1 year postinjury, litigation did not appear to have systematic effects on the neuropsychological outcome of 436 head injured participants (Dikman et al., 1995). In considering the complexities and variables involved in trying to determine the existence and severity of a TBI in such cases, it is essential for the examiner to research the data on base rates as part of the assessment process. Base rates simply refer to the frequency of occurrence of a particular symptom, impairment, etc., within a given population. For example, it is clear from the research (Dikman et al., 1995) that significant neuropsychological impairment at 1 year follow-up in mild TBI cases is as unlikely as escaping such impairment in severe TBI. Additionally, a clear majority of well-designed outcome studies have demonstrated good long-term neuropsychological recovery for most cases of mild TBI (Dikman et al., 1995). Thus, it is extremely rare, per the base rate data (1.9 to 5.8%), for persons with mild TBI to experience extended postconcussive symptoms 1 year

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postinjury (Alves et al., 1993; Nemeth, 1996; Dikman et al., 1995; Larrabee, 1997). Further complicating the data are the base rate studies that showed a high frequency of reported postconcussive symptoms in a person going through litigation for emotional distress or industrial stress without report of “central nervous system” (brain) injuries or claims (Larrabee, 1997; Lees-Haley and Brown, 1993; Putnam and Millis, 1994). Base rate research in mild TBI is not only focused on the frequency of symptoms and recovery rates, but also now included in the normative data for specific neuropsychological tests (Heaton et al., 1993; Palmer et al., 1998). Such base rate information for specific neuropsychological tests provides the examiner with critical information; for example, when analyzing test result performance of a person claiming to have suffered a mild TBI, the examiner can determine not only the statistical significance (e.g., how reliable that difference is) of a given score or set of scores, but also the clinical significance. A common example is when comparing the difference in scores between the verbal and performance IQ subtests on the WAIS-III (Psychological Corporation, 1997) with base rate data, the examiner can determine if the difference between the two tests is statistically significant, and if this difference is clinically significant. Thus, a score difference between the performance and verbal IQ on the WAIS-III may be statistically significant, but using base rate data for a given population (based on age, educational level, and full-scale IQ), such a difference in score may occur in 25% of the population, which is in no way clinically significant. Appendix A (at the end of the book) provides an outline of a model assessment approach for the medical and legal professionals involved in mild TBI cases. Appendix B provides a list of important articles and references by key issues or categories related to the forensic assessment of mild TBI. Clearly, the assessment of mild TBI is a complicated and difficult task for the medical professional, and, therefore, an indepth knowledge of base rate research on mild TBI and neuropsychological assessment is critical in the assessment process.

References Alphona, D.P., Finlayson, A.J., Stearns, G.M., and Elison, P.M. (1990). The MMPI in neurologic dysfunction: profile configuration and analysis. The Clinical Neuropsychologist, 4, 69–79. Alves, W., Macciocchi, S., and Barth, J.T. (1993). Post-concussive symptoms after ucomplicated mild head injury. Journal of Head Trauma Rehabilitation, 8, 48–59. American Congress of Rehabilitation Medicine. (1993). Definition of mild traumatic brain injury. Journal of Head Trauma Rehabilitation, 8, 86–87. American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders, 4th ed. American Psychiatric Association, Washington, DC. Anderson, C.V., Wood, D.M., Bigler, E.D., and Blatter, D.D. (1996). Lesion volume, injury severity, and thalamic integrity following head injury. Journal of Neurotrauma, 12, 35–40. Bachna, K., Sieggreen, M.A., Cermak, L., Penk, W., and O’Connor, M. (1998). MMPI/ MMPI-2: comparisons of amnesic patients. Archives of Clinical Neuropsychology, 13, 535–542. Barona, A., Reynolds, C.R., and Chastani, R. (1994). A demographically based index of premorbid intelligence for the WAIS-R. Journal of Consulting in Clinical Psychology, 52, 885–887.

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The Forensic Neurological Assessment of Traumatic Brain Injury Donald T. Starzinski

Contents 2.1

Elements of Forensic Neurologic Diagnosis of TBI......................................25 2.1.1 History................................................................................................26 2.1.2 Examination........................................................................................ 27 2.1.3 Laboratory Studies.............................................................................. 27 2.2 The Neurologic Examination in Forensic Analysis.......................................28 2.2.1 Neurologic History.............................................................................28 2.2.2 Physical Examination......................................................................... 30 2.2.3 Diagnostic Testing/Laboratory Studies.............................................. 31 2.3 The Neurological Examination vs. Independent Medical Examination........ 32 2.4 Specific Issues in the Independent Medical Examination (IME).................. 36 2.4.1 IME Reports....................................................................................... 37 2.4.2 Diagnostic Studies.............................................................................. 38 2.4.3 Summary/Interrogatives..................................................................... 39 2.5 Indications for Neurorehabilitation................................................................ 39 2.6 Conclusion...................................................................................................... 41 References................................................................................................................. 41

2.1 Elements of Forensic Neurologic Diagnosis of TBI Within the realm of medical practice, the subspecialty of neurology is traditionally regarded as a rather complex endeavor. The nervous system is implicated in a multitude of human functions, playing a central role in most of what the body does. In order to arrive at an understanding of a person’s neurologic functioning, and specifically whether it deviates from normal patterns, a systematic approach to neurologic diagnosis is undertaken (DeJong and Haerer, 1998; Mayo Clinic, 1991). The basic elements of neurologic diagnosis consist of a comprehensive history, thorough examination, and various diagnostic testing. Neurologic diagnosis is a deductive process attained by a synthesis of all of these elements. The physician must interpret these elements, integrate them, and articulate the conclusions in an assessment (see Table 2.1). 25

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Table 2.1 Elements of Neurologic Diagnosis History Neurologic examination Diagnostic studies Assessment

Table 2.2 Elements of the Medical/ Neurological History History of present illness Review of neurologic systems Review of medical systems Past medical history Medications Habits, including substance abuse Family history Social history, including:   Occupational history   ADLs (activities of daily living)

2.1.1  History It may come as a surprise to many that it is generally not the sophisticated imaging studies of the brain or the complicated neurophysiological testing (bioelectrical testing) that typically leads to the most information about a neurologic condition. Rather, it is the history that actually gives the practitioner the most diagnostic information. A thorough history includes thoughtful review of an individual’s symptoms, which are quite revealing in portraying neurologic syndromes or neurologic abnormalities in general. Such a history can reveal specific disease processes as revealed in syndromes (constellations of symptoms). A thoughtful history can also lead to the localization of a problem within the orderly neuroanatomy of the human body. Specifically, the neurologic history can determine whether a problem is focal (localized) or diffuse, and also what the etiology (cause) of the neurologic dysfunction may be (see Table 2.2). Specific clues from a person’s medical history, such as his or her habits, including, for example, occupational toxin exposure or chemical dependency, can lead to important data that further guide neurologic examination and testing. Other examples of historic elements that may be quite helpful in shaping a diagnosis would be family history, which of course would provide explanations for genetic tendencies such as psychiatric illness, headache predilection, arthritic conditions, or disease processes such as diabetes that may have important neurologic implications (Popkin, 1997).

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Table 2.3 Elements of the Neurologic Examination Mental status Cranial nerves Motor Sensory Coordination

2.1.2  Examination The neurologic examination, which is actually one of the most involved subspecialty physical examinations, can lead to valuable diagnostic clues with regard to nervous system abnormalities that may have value in leading to conclusions regarding localization of dysfunction in the nervous system, and hence further clues about etiology. As suggested previously, the neurologic examination may be quite useful, but is more often a confirmatory process, with suspicions already having been raised by the thoughtful neurologic history. The neurologic examination consists of specific tests to assess the functioning of a person’s mental status, cranial nerve function, motor function, sensory function, and coordination capabilities (see Table 2.3). A thorough and skillful performance of the neurologic examination can, in many cases, localize neuropathology within the axis of the nervous system (that is, whether the problem involves the brain, spinal cord, peripheral nerves, or muscles) and, in some cases, very specifically identify the precise locale of the neurologic dysfunction. In some instances, the careful neurologic examination can reveal abnormalities of the nervous system that had previously been unsuspected and could guide further inquiry regarding “subclinical” symptoms. Such subtle abnormalities could be elucidated by more detailed testing such as imaging studies and neurophysiologic testing as maneuvers to further refine the neurologic diagnosis.

2.1.3  Laboratory Studies The third tier of neurologic investigation includes sophisticated diagnostic studies (see Table 2.4) such as imaging of the brain with computerized axial tomography (CT) scans and magnetic resonance imaging (MRI). Also, investigations of the nervous system function with physiological screens, such as the electroencephalogram (EEG) and electromyogram (EMG), which study the electrical activity of the brain and peripheral nerves and muscles, respectively, are available (Aminoff, 1986). An even broader spectrum of neurologic tests includes such high-tech analyses as the metabolic functioning of the brain via investigation of energy utilization (positron emission tomography [PET] and single photon emission computerized tomography [SPECT] scans). Functional MRI (fMRI) is yet another modality being refined to study the dynamic changes that occur with brain activity (Hammeke, 1999; Thatcher at al., 1997; Gale et al., 1995; Cecil et al., 1998; Savoy and Gollub, 2004). Still, other testing includes brain mapping using an array of electrical recording devices to study the distribution of electrical activity of the brain. Magnetic resonance spectroscopy

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Table 2.4 Diagnostic Studies by Type Imaging Studies X-rays CT scans MRI scans Neurophysiologic Studies EEG Evoked potential studies Brain mapping Functional Imaging Studies PET SPECT Functional MRI Magnetic resonance spectroscopy

is yet another variation of imaging that is showing interesting potential to display neurochemical changes in the brain, including within the context of brain injury (Brandão and Domingues, 2004; Danielson and Ross, 1999). Some details regarding these various imaging studies are discussed in chapter 3 on neuropsychiatric assessment. Many of these later strategies are primarily experimental in nature, but have been used in forensic settings (Restale, 1996). It should be stressed that these sophisticated tests can be invaluable in confirming diagnoses but are generally confirmatory maneuvers. Justification has to be given to use these various studies, particularly because of cost concerns and also the invasive risks of some of these studies. Hence, neurologic diagnosis involves a quite sophisticated synthesis of historical and physical examination findings and laboratory testing.

2.2 The Neurologic Examination in Forensic Analysis The various elements of neurologic diagnosis will be systematically examined, particularly with regard to their value in the independent medical examination (IME) for purposes of forensic examination.

2.2.1  Neurologic History Every neurologic evaluation must be accompanied by as accurate a history as possible. As implied above, a skillfully taken history with careful analysis and interpretation of the chief complaint and the course of the problem frequently indicates a probable diagnosis even before any of the other elements of the evaluation, namely, the physical and neurologic examinations as well as laboratory investigations, are performed. The history of the present illness should include clear descriptions of the onset of the problem, with symptoms at the time of the traumatic injury being particularly important in the analysis of the severity of traumatic brain injury (TBI) (Malec, 1998;

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Restale, 1997). For example, the presence of altered consciousness and the duration of such altered consciousness is quite important. Other historic features at the time of an injury, such as altered cognition in the form of memory difficulties or confusion, are again very important to inquire about. Among the details of medical symptoms, their onset, duration, magnitude, and course or trend are important to characterize. A specific review of neurologic symptomatology that relates to the dysfunction of the nervous system must be inquired about in order to thoroughly cover the range of possible problems that may result from injury to the brain, and the nervous system more generally. The review of neurologic systems actually mirrors the elements of the neurologic examination, namely, mental status, cranial nerve, motor, sensory, and coordination functions, and their related conditions. Inquiries into a person’s past medical history are also quite important in placing the presumed new process in its proper context. For example, previous history of head injury may predispose a person to more severe brain damage, even with a relatively minor trauma. The importance of such history relates to a genetic predilection for brain injury in individuals possessing certain chromosomal characteristics (see discussion of the apolipoprotein E gene in the following chapter). Other historic features, such as previous seizure disorder history, developmental disabilities, or psychiatric conditions, including chronic pain syndromes, are vital to inquire about. Examples of problems in a past medical history that may impact on sequelae of TBI include history of cognitive or neurobehavioral problems in the past, such as confusional episodes related to epilepsy or migrainous headaches. History of psychiatric illness is particularly relevant in that various syndromes, especially in stages of acute exacerbation, may present with confusional episodes and delirium. Also, various psychiatric conditions may significantly influence cognitive testing, and hence the “appearance” of organic neuropathology. Other general medical problems, such as diabetes and hypertension, are quite relevant, as such medical conditions may strongly predispose a person toward a cerebrovascular disease and related cognitive difficulties that may mimic sequelae of TBI. Cerebrovascular disease, related to a number of etiologies, including artherosclerosis and various rheumatologic conditions, may also predispose a person to certain vascular dementias. A medication history is also quite relevant in that medications used around the time of the traumatic injury may mimic or mask symptoms that could be indicative of TBI. Also, many medications used to treat chronic medical conditions have cognitive changes as part of their common side effect profile. Furthermore, the patient’s habits are also part of the thorough medical history and may lead to revelations about significant exposure to chemicals that may have either transient or long-term effects on neurocognitive functioning. This would include alcohol exposure, which over time can lead to not only a dementing process, but also rather striking focal amnestic syndromes in the setting of vitamin deficiencies, namely, Wernicke–Korsakoff syndrome. Certainly other drugs of abuse, including from the hallucinogen, stimulant, opiate, and benzodiazepine classes, have clearly associated neurocognitive changes, which may impact on the brain abnormalities attributed to traumatic injury.

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Family history is important in identifying genetic and familial tendencies toward certain conditions that may present as neurocognitive syndromes, which may in turn mimic traumatic injury. This would include such entities as Huntington’s chorea, Alzheimer’s disease, and other chromosomal syndromes that present with subtle neurological abnormalities, particularly in their early stages, and could confuse the issue of causal manifestations of a TBI. Social history is important in identifying factors that may lead to organic neurologic conditions that have TBI-like manifestations. A person’s socioeconomic status may predispose him or her toward nutritional deficiencies or even other traumatic injuries that again mimic or impact on sequelae of a subsequent TBI. Other factors, such as toxin exposure from certain environmental settings and occupational situations, may have been implications for neurologic pathology as well.

2.2.2  Physical Examination Prior to the neurologic examination itself, it is useful to observe and comment on a person’s general appearance, including his or her willingness to participate in the examination process. Such factors as impulsiveness or inappropriate comments along with observations of emotional lability and general mood are invaluable in fitting the neurologic observations into their proper perspective. A musculoskeletal examination, which would include observations of range of motion of the spine and elicitation of any tenderness or paraspinous musculature abnormalities, may be particularly important in individuals with TBI who have complaints and neurologic findings relative to pathology of the spine. (These observations relate to the sensorymotor components of the neurologic examination.) Having completed the general observations, including musculoskeletal functions, the neurologic examination is accomplished with examination of the five elements discussed previously: the mental status examination, cranial nerve examination, motor examination, sensory examination, and coordination testing. The mental status examination, as performed in the neurologic examination, would represent a screening examination, in contrast to the very detailed testing done by the neuropsychologist (see chapter 3 on the neuropsychological assessment). A neurologist would perform a mental status screening using elements of the Mini-Mental Status Examination, which, although somewhat general in nature, is quite useful in identifying cognitive abnormalities that may lead to suggestion of focal neurologic dysfunction (Folstein, 1975). This survey includes the testing of attention, memory, and language, as well as some abstract cognitive functioning. Additionally, the mental status examination includes observations regarding thought process, lability, and affect to detect such psychiatric concerns as psychotic thought or mood disorder. Care should be taken to make note of any internal inconsistencies that would suggest functional (nonorganic) manifestations of a person’s mental status abnormalities. This latter observation is particularly relevant in forensic examinations. The second element of the neurologic examination is cranial nerve testing, which assesses the integrity of the motor and sensory functions in the head and neck. Cranial nerve abnormalities that are particularly common in the setting of traumatic injury include visual and oculomotor abnormalities as well as articulation

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d­ ifficulties from disruption of the bulbar (mouth and throat) functions. Subtle hearing abnormalities and subjective symptoms such as tinnitus can be sequelae of TBI as well. Impairments in sensory functions such as vision and hearing can, in turn, influence various neuropsychological testing used to investigate cognitive deficits related to brain injury. Motor examination includes testing of the musculature throughout the extremities and trunk, particularly with regard to strength, tone, gross motor movements, and reflexes. Such testing can discover subtle focal abnormalities that may be part of TBI and have implications in the overall abilities of an individual. For example, motor abnormalities may have a significant impact on activities of daily living (ADLs), including occupational activities. Again, functional (nonorganic) features may be seen with motor testing, including the feigning of paralysis or, at least, gross motor weakness. Exam inconsistencies elicited by a skilled examiner can detect such a functional process. Sensory examination assesses the ability of the individual to perceive various sensory modalities, including light touch, sharp sensation, position sensation, vibratory sensation, and some higher cortical perceptions of sensation, such as the detection of writing on the hand (graphesthesia) and perception of simultaneous presentations of stimuli to both sides of the body. These more complex perceptions are disrupted in subtle parietal lobe injuries. Hence, sensory testing is also quite useful in localizing neurologic dysfunction and assessing functional sensory loss as well. There is a very defined “wiring system” of the central (brain and spinal cord) and peripheral (outside the spinal cord) nervous systems that make it possible for the neurologist to detect whether an individual has organic pathology in the central or peripheral nervous system, or if there is a “nonanatomic” pattern of sensory abnormalities to suggest a functional process. The final element of the neurologic examination is testing of coordination. This is done by assessing coordination and fine motor movements of the extremities, both arms and legs, as well as the assessment of a person’s balance and ambulation abilities. The testing of coordination is quite useful in detecting damage to specific anatomic structures, including the cerebellum and basal ganglion areas, which give rise to characteristic coordination difficulties with regard to fine finger movements, rapid alternating movements, and other coordinated motor activities with standing and walking, etc. Again, functional abnormalities of the coordination examination may include a phenomenon of astasia abasia, which is a characteristic balance difficulty that is present in nonorganic neurologic conditions and essentially consists of highly inconsistent balance difficulties. Hence, virtually all the elements of the neurologic examination not only lend themselves to identification of focal central or peripheral nervous system problems, but also can be quite helpful in the identification of organic and nonorganic (functional) abnormalities. This is critical in forensic evaluations that have as their question whether a neurologic abnormality relates to traumatic injury.

2.2.3  Diagnostic Testing/Laboratory Studies After obtaining a thorough neurologic history and supporting clinical suspicions with neuroexamination findings, further testing can be warranted in the form of any

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number of ancillary tests that act to confirm neurologic diagnoses, and sometimes indicate etiologies of a neurologic nature as well (Garada et al., 1997). Imaging studies have become quite sophisticated in detecting very small structural abnormalities, but even the most sophisticated imaging studies, including advanced-generation MRI scans, cannot always detect small areas of structural neurologic pathology by virtue of the subtlety. The abnormalities may be electrical and biochemical in nature rather than related to anatomic changes. In the setting of TBI, a vast spectrum of neuroimaging abnormalities can be detected depending on the degree of damage. For example, intracranial bleeding can be quite obvious at times and is typically detectable by standard CT scan studies. Edema (swelling of the brain) is also evident at times as a result of head injury. More subtle abnormalities can sometimes be detected by MRI scans that can, for example, reveal even subtle areas of edema (disruptions in the blood-brain barrier). Neurophysiological studies of the brain may be useful in cases where there has been new onset of epilepsy or other focal neurologic abnormalities as a result of TBI. Again, these studies are primarily confirmatory and guided by clinical symptoms and neurologic examination findings. EMG is a study of primarily peripheral nerve and muscle functions and would not necessarily be indicated or abnormal unless there was additional damage to the peripheral nerves or muscle disease process, concomitant with or independent of the suspected brain injury. Other, more advanced neurologic screening, such as PET and SPECT scans, fMRI, magnetic resonance spectroscopy (MRS), and brain mapping techniques, can reveal subtle metabolic abnormalities of the brain and very subtle changes in electrical patterns of the brain. However, such studies are relatively experimental with regard to detecting or elucidating patterns of brain injury after trauma. Certainly, these more advanced studies are not standards of care with regard to the proof of brain injury or localization (Weiss, 1996; Mayberg, 1996; Gowda et al., 2006; Lotze et al., 2006). It should be noted that these types of studies may not only confirm evidence of traumatic injury, but also reveal other neurologic conditions that actually prove to be alternative etiologies for neurologic dysfunction, such as neoplastic diseases, degenerative diseases, infections, cerebrovascular abnormalities, or even congential abnormalities.

2.3 The Neurological Examination vs. Independent Medical Examination Having discussed elements of the neurologic examination, it should be recognized that the forensic use of the neurologic examination requires some modification of the traditional exam, at least with regard to emphasis, and also with regard to the focus of such an examination, specifically not being meant to establish a physician–patient relationship. In fact, an interview with the client should take place before the examination, clarifying the issue of the examination not being meant to establish traditional medical advice or treatment. With regard to the interview in such an encounter, unless there is significant evidence to the contrary, it is best to accept the client’s history at face value and portray it as stated during the interview. Data from medical records that are reviewed allow

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comparisons and contrasts to the stated history in order to corroborate or dispute interview evidence offered. A meticulous review of previous medical records, particularly important in the IME process, establishes the presence or absence of previous medical conditions or injuries that may impact a person’s current neurologic functioning. Such medical records could, of course, include prior medical or therapeutic efforts to address injuries, including TBI as well as psychiatric issues and any number of medical conditions and medical therapies, which may impact brain functioning. The actual neurologic examination, as part of an IME process, should be prefaced by the clear intention that the examination is being done as a standard medical examination, not meant to extend a person beyond his or her capabilities; that is, not to cause any injury, which may be a remote potential in some elements of examination that are done to test extremes of function, such as passive range of motion, particularly if performed incorrectly. Generally, a neurologic examination should not pose any significant risk of harm. As alluded to in the description of elements of neurologic examination above, there are particular maneuvers and observations that are useful in eliciting functional abnormalities (Weintraub, 1997). At this point, it is important to clarify the terminology used to describe nonorganic neurologic problems, that is, problems that have a nonphysical basis. Terms with somewhat subtle nuances of meaning include hysteria, malingering, factitious, nonphysiologic, functional, and psychogenic. Many of these terms have rather extended implications and are probably best avoided. For example, hysterical has some specific psychiatric implications and an implicit gender bias. The term malingering imputes motivation to cause some disruption in function and is difficult to demonstrate objectively. Factitious implies conditions that are actively caused by the patient himself or herself and again implies a more specific psychiatric diagnosis, such as Munchausen’s. The term functional, in my opinion, is preferred to describe a person’s actual ability to perform a certain act, but inability to demonstrate that ability on examination. The term functional (psychogenic) is used by some authors to more definitively imply that the patient’s inability to perform an act that he or she has the capability to perform has a psychological component. The demonstration of functional abnormalities essentially cuts across all of the aspects of the neurologic examination, as demonstrated in some of the examples given above. Particular emphasis should be given to various aspects of the neurologic examination that are important to focus on when issues of TBI are examined (McAllister and Green, 1998a; Weintraub, 1997). Specifically, certain patterns of functioning with regard to neurocognitive abilities can be a means of identifying functional patterns of neuropsychological functioning. Such issues are dealt with in detail in other areas of this text. False memory syndromes, for example, are a rather important possible forensic outcome to such investigations. In the realm of cranial nerve functioning, ophthalmologic (eye) findings can be particularly important in identifying functional processes. Both the area of visual loss and other ophthalmologic abnormalities relating to eye movements, etc., can be elegantly detected by skillful neuro-ophthalmologic maneuvers. Also, the issues relating to psychogenic movement disorders are quite prominent in the area of forensic neurology, particularly as implicated in instances where head injury has been

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postulated as the etiology (Nora and Nora, 1999). In such cases, it is very important to have a global understanding of a person’s medical history and genetic predispositions, as many of these movement disorders can readily be demonstrated to have other definite etiologies. In the realm of cortical functioning, a person’s ability to perform some higher cortical functions, such as recognition of deficits, computational abilities, writing abilities, etc., is screened by the routine neurologic examination and again interfaces very directly with neuropsychological testing to identify convincing organic deficits. Thus, there is a close interplay between what is screened by the neurologic examination and confirmed and what is better characterized by detailed neuropsychological testing. Some syndromes may be a direct result of an acquired brain injury. A specific neurologic process, namely, epilepsy, is a sometimes subtle, but important entity to demonstrate as potentially related to TBI. Usually, posttraumatic epilepsy is quite dramatic and can easily be identified by subsequent intermittent generalized seizures and related electroencephalogram abnormalities that, in turn, can be effectively treated with appropriate anticonvulsant medications. In the more subtle aspects of epilepsy, certain neurobehavioral problems and even neurocognitive difficulties have been definitively ascribed to epileptic events. Conversely, there are events termed pseudoseizures that typically consist of some elements of true epilepsy, but are psychological in nature and do not have an organic basis for their occurrence. The area of forensic neurology has dealt prominently with issues of epilepsy as a potential cause of aggressive behavior (Treiman, 1999). Significant implications relate to the culpability of an individual who performs an aggressive act in the context of an epileptic condition. These types of clinical questions have varying degrees of subtlety, and recognition of epilepsy as a potential factor in a person’s behavior can be quite important. The convincing demonstration of pseudoseizure as a diagnosis can be quite involved, oftentimes requiring very extensive electroencephalographic monitoring in the setting of a comprehensive epilepsy treatment program. However, such a process is very important to clarify in that it not only may explain a person’s paroxysmal neurocognitive and neurobehavioral difficulties as functional in nature, but also may obviate the treatment of seizures with any number of medications that have inherent side effect risks. The demonstration of pseudoseizures, in my opinion, can be one of the more difficult diagnoses to make with regard to a person’s neurocognitive and neurobehavioral functioning in that pseudoseizures can often coexist with an organic seizure disorder. Hence, one must be sophisticated enough to be able to discriminate epileptic from nonepileptic events on an ongoing basis in such an individual. Specialized epilepsy clinics may be helpful in characterizing these complex clinical presentations. The problem of language dysfunction (aphasias) can be quite important to recognize and characterize as a neurologic entity that may have profound implications for a person’s cognitive and even behavioral abilities. A wide spectrum of language dysfunction is possible as a result of disruption in the language centers in an individual’s dominant cerebral hemisphere. The basic subtypes of aphasias include receptive aphasias, which primarily affects a person’s ability to receive language information from his or her environment, by either written or verbal input. Such an individual may still be able to produce some fluent language, but the speech typically deals with

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­ ell‑learned phrases, and there are obvious problems with the processing of new w information presented to such an individual. A second major type of aphasia is an expressive aphasia, in which an individual may understand language input by way of various verbal or written materials. However, such an individual has difficulty expressing thoughts and ideas and sometimes can only produce very overlearned and stereotyped words. Such an individual has extensive problems with language expressions of anything but the most basic ideas. The third, and most severe, type of aphasia is of a global type, where a person may have impairment in both reception and production of language. Such an individual is relatively devoid of the ability to use language and is quite significantly impaired. Individuals who have language dysfunction to this degree oftentimes have other motor deficits, such as hemiparesis, because of the relatively large area of cortex that would be damaged in order to produce these problems. Deficits related to aphasia, of course, would tie in with neurobehavioral functioning in that individuals with aphasia characteristically have a good deal of frustration with their language disabilities and oftentimes exhibit agitation and sometimes problems with impulse control as a result of a secondary effect of the aphasia. Certainly, other areas of cortical damage, such as frontal lobe damage correlated with some of the language dysfunctions, may also predispose toward disinhibition by virtue of other areas (control centers) of the brain being affected as well. Discussion of epilepsy, aphasia, and concerns about functional disorders brings up the issue of how psychiatric diagnoses could enter into the context of brain injury. Certainly, various aspects of neurocognitive and especially neurobehavioral problems due to brain damage mimic various aspects of psychiatric disorders. For example, disinhibitions from certain anterior frontal lesions may closely resemble disorders of impulse control, and on the other end of the spectrum, abulia (disinterest), which is due to deep midfrontal lesions, could closely mimic some of the vegetative symptoms of depression or psychotic disorders (McAllister and Green, 1998b). There are, of course, clearly defined psychiatric syndromes as outlined in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision (DSM-IV-TR), and there are certainly biological bases for these psychiatric syndromes, although some are more clearly characterized than others (American Psychiatric Association, 2000). For example, the biochemical bases of schizophrenia and depression have been extensively delineated, particularly on a neuropharmacological level, by virtue of medications that have been found to be effective in their treatment. The actual overlap of psychiatric syndromes as per DSM-IV-TR criteria and sequelae from brain injury is sometimes disputed, although evidence does suggest that fairly typical psychiatric syndromes can be produced after TBI. It is debatable as to whether a head injury actually causes the biochemical condition that produces the psychiatric syndrome or the psychiatric syndrome is simply a “reaction.” For example, a reactive depression can be on the basis of deficits from a brain injury engendering a grief reaction. In any case, various accounts have demonstrated neuropsychiatric illness after TBI, which would not be accountable by factors such as reaction to an event. In some cases, psychiatric syndromes are suggested even after the syndrome of mild TBI. Hence, in the setting of the neurological forensic examination in the context of brain injury, a very thorough focus has to be placed on these various cognitive and

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neurobehavioral issues, including a cognizance of psychiatric symptomatology as possible sequelae of the brain injury. Such screenings ideally should be done by a neurologist skilled in neurobehavioral issues, as the subtle cognitive and behavioral manifestations of brain injury may not be as apparent to a neurology practitioner who does not have experience in this area. With regard to the conclusions of an IME, specific interrogatives are frequently requested of the neurologist pertaining to diagnoses as well as correlations to any particular accident in question. The key to an effective IME is an accurate identification of causal factors that contribute to an individual’s neurocognitive and neurobehavioral functioning, as well as any other sequelae from the TBI, such as motor deficits, sensory deficits, or other aspects of neurologic functioning, as outlined previously. The determination of an accurate cause hinges on a careful history, examination, and interpretation of diagnostic studies, as discussed. As part of the analysis of a person’s neurologic functioning, requests are made to determine an apportionment of causality to specific injuries, particularly if there is more than one event implicated in the cause of a person’s deficits. Such apportionment may certainly have quite important implications for legal responsibility pertaining to a certain neurologic condition. Also, further opinion may be requested with regard to a period of healing following such an event. Again, knowledge of the natural history of a brain injury is critical in being able to predict clinical improvement or not in a certain condition, and a time frame in which such improvement can be expected. In summary, it is apparent that a forensic neurologic examination would closely mirror a traditional neurologic examination, but would focus on certain elements that are particularly important in legal settings, such as issues related to causality of a certain condition and its implications for an individual’s abilities and general lifestyle over time. This, of course, includes the focus on neurocognitive and neurobehavioral functioning as well as other higher cortical functions and psychiatric symptoms, which are also important neurologic concerns in a forensic setting. Adherence to standard neurologic principles engenders the highest quality to such an analysis. Furthermore, awareness and experience in the neurobehavioral aspects of medicine provide the strongest positions for scientific and, specifically, medical credibility in this area. TBI has a rather varied spectrum of manifestations, but these are identifiable and manageable in a forensic sense if there is thoughtful adherence to the scientific body of neurological knowledge in this setting.

2.4 Specific Issues in the Independent Medical Examination (IME) Having outlined the elements of the neurologic examination and how independent medical examinations (IMEs) require emphasis in various aspects of the neurologic examination, it would be useful to explicitly discuss how an IME report can be optimized with regard to its effectiveness as a medical analysis. Various aspects of the IME, from its inception as an IME request to a specialist through the writing of clinical summaries and interrogatives, can influence its quality. Elements of the IME that should be particularly emphasized include type

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of subspecialist, medical record issues, imaging study and diagnostic information, clinical summaries, and specific interrogatives. Specifically, there are certain technical aspects of IMEs that may offer stronger evidentiary credibility to establish a position.

2.4.1  IME Reports A primary issue is related to the type of subspecialist who should perform an IME. Specifically, in the setting of TBI, the opinions of both the neurologist and neuropsychologist may be useful. Which subspecialist is chosen would depend on the exact question asked (Tsushima and Nakano, 1998). If the question pertains specifically to neuropsychological functioning, such as detailed analysis of neurocognitive and neurobehavioral factors, the neuropsychologist would certainly be critical in producing the most optimal report. However, if a more global look at a TBI is desired (such as various medical aspects, including technical details of the mechanism of injury, medication management, epilepsy issues, and other, more general concerns), then the neurologist would be more appropriate as an independent medical examiner. At times, both subspecialists may be required to lend the strongest analysis to a particular case. Again, the roles of the neurologist and neuropsychologist are complementary in the setting of TBI, and the choice of one or the other, or both, may be a matter of the emphasis needed. Efficient and comprehensive gathering of medical records can strongly influence the quality of an IME. A thoroughly organized set of records in chronological order and indexed by a subspecialty provider can efficiently and clearly disseminate medical information. The more comprehensive and clear the medical records, the more possible it is to gather information regarding preexisting factors, including both medical conditions and other activities of daily living that influence a person’s deficits following TBI. Again, a comprehensive history of medical problems can be invaluable, as strongly discussed in the preceding section concerning neurologic diagnosis. Particular attention should be given to details in medical records relating to medical conditions, both before and after a particular traumatic event. This would include records relating not only to previous traumatic events, but also to any medical condition that may directly or indirectly impact on neuropsychological functioning. For example, medical documentation of a cognitive or behavioral limitation prior to a traumatic event may indicate a preexisting problem that could progress with or without the traumatic brain injury in question. As discussed previously, any number of causes for such neurobehavioral or neurocognitive difficulties should be carefully noted, as they may impact substantially on subsequent neuropsychological developments after an injury. The course of events after a traumatic injury may also be quite critical in analyzing a person’s ongoing neurologic functioning. For example, the development of other new problems, such as medical conditions, may either delay or, in and of themselves, cause neurologic problems that would otherwise have resolved during the natural history of healing after the traumatic event. Hence, it is important to note new medical diagnoses, such as cerebrovascular disease, rheumatologic conditions, infections, neoplastic processes, or other medical conditions that may impact on a person’s apparent recovery after traumatic injury.

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Psychiatric conditions are also very important to note. If a psychiatric problem is noted following an injury, even if it was not present before the injury, causality is not necessarily implied. Such other factors as reactive depression (depression caused by physical or emotional loss following an event) can cause marked disability in an individual, and it may have only a very indirect relationship to the traumatic injury itself. In fact, there is a fairly high spontaneous occurrence of such problems as depression, with or without injuries, which should be taken into account in the analysis of a person’s functioning after a traumatic event. The recurring theme of distinguishing causality from correlation is, of course, quite important in a careful scrutiny of medical records. Pharmacologic interventions via chart records may give a clue as to other etiologies for a person’s apparent neurocognitive or neurobehavioral problems. If a person develops a need for ongoing pain treatment, such analgesic medications may, in and of themselves, cause significant side effects with related neuropsychological implications. Also, there may be need for pharmacologic therapies that have no relationship to a traumatic event, such as treatment for high blood pressure or other unrelated conditions that occur after an injury. The side effects from such pharmacologic interventions may mimic neurocognitive and neurobehavioral problems seen after traumatic injury, but have no relationship to a particular traumatic event. Hence, astute recognition of both general medical and pharmacologic issues is invaluable in better elucidating the causality of a traumatic neurologic process.

2.4.2  Diagnostic Studies Imaging studies and other diagnostics are also quite useful in better delineating the extent of neurologic involvement, including important corroborative evidence for neuropsychological testing. Other neurophysiological testing, such as electroencephalograms, etc., may lend confirmatory evidence toward diagnoses such as epilepsy or other organic cortical processes. Proof of structural and functional neurologic abnormalities may be quite useful in strengthening evidence of a neurologic condition. It is most convincing to have subjective symptomatology, physical examination findings, and diagnostic studies such as imaging studies all supportive of the same neurologic process. Conversely, if an individual’s symptoms are somewhat equivocal and the examination findings are subjective in nature, inconclusive radiographic studies can further cast doubt on the validity of a postulated disability. This can relate not only to radiographic studies, but also to constellations of neuropsychological deficits and detailed neurologic examination findings that can be quite specific to a diagnosis. Personal review of diagnostic studies can also strengthen the nature of a medical record review. For example, personal review of imaging studies by an independent medical examiner qualified to view such studies can lend an increment of confirmatory evidence to objective clinical findings. Along these lines, the degree of expertise of an individual would certainly impact on how credible the interpretation of diagnostic studies would be in any given setting. For example, a practitioner’s experience with reviewing radiographic or electrophysiologic studies would certainly influence the quality of the medical evidence.

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2.4.3  Summary/Interrogatives Perhaps the most important aspect of the mechanics of an IME request would be the summary of the legal concerns of a case and the related, clearly stated legal questions. As medical practitioners oftentimes have limited or at least unsophisticated knowledge of legal technicalities, interrogatives posed in direct language can obviate the educing of medical opinions that do not address the legal perspective desired. It would certainly be useful for the attorney or legal representative to define what degree of certainty to ascribe to a medical opinion. Explanation of such phrases as “within a reasonable degree of medical certainty” can be useful, particularly to medical practitioners who are not versed in the legal process. Other aspects of the interrogatives on a request for an IME that may be ambiguous to the relatively legally unsophisticated medical practitioner would include such phrases as “reasonable” or “necessary.” Such phrases may not have the precise meaning to a medical practitioner as they do to the legal expert, and hence explanations of such questions may be necessary to optimize the IME document. Thus, it is the clear understanding of the neurologic diagnosis process and how this process interfaces with the legal questions posed that can best lead to effective IME reports.

2.5 Indications for Neurorehabilitation Based on the previous discussion regarding the spectrum of disability that can result from TBI, it is evident that rehabilitation is quite a broad topic. Some basic principles regarding recommendations/indications for neurorehabilitation can be useful. One must first consider the natural history of a TBI, specifically recognizing that some degree of natural healing would be expected without intervention, but that certain interventions would be vital to ensure optimal and timely recovery from a TBI. Certainly, the severity and extent of the brain injury would dictate needed interventions. After a severe injury, prompt and thorough interventions may limit the extent of brain damage and optimize the recovery of areas of the brain that may be partially damaged and more amenable to “healing” when supportive interventions have been accomplished. With milder degrees of injury, there may be a lack of recognition of any particular difficulties for some time, and only with various environmental challenges will they be made evident. As indicated with severe brain injury, there would be an expected “healing process” from the physical damage done to the brain. With mild TBI, there is optimism of good and sometimes complete recovery, although such recovery may take many months to accomplish. Hence, physical changes of structural and biochemical healing may take place over many months to a few years after brain injury, again depending on the extent and severity of the injury. Neurorehabilitation is useful both during and after such physical changes have occurred with the intention of optimizing the degree and rate of recovery to afford the best outcome. As implied previously, the spectrum of rehabilitation is as broad as the wide spectrum of injuries that may manifest after trauma to the brain. The range of interventions include medical and pharmacologic strategies to address the physiologic and biochemical needs of a healing nervous system in conjunction with

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n­ europsychological and neurobehavioral interventions to treat cognitive, behavioral, social, spiritual, and environmental issues that present after brain injury. A trend in medical care toward a holistic approach to health nicely exemplifies an ideal approach to neurorehabilitation. Various terms describe the interdisciplinary modalities that have been increasingly recognized as beneficial for medical problems such as traumatic brain injury. Specifically alternative, complementary, and perhaps most appropriately integrative medical techniques have been used to address the complex issues that confront an individual with traumatic brain injury. Such an integrative medical approach through rehabilitation is exemplified in therapeutic interventions at the Minnesota Neurorehabilitation Hospital (Murrey, 2006). Integrative therapeutic interventions such as horticulture therapy and innovative physical therapy techniques serve as neuropsychological and neurobehavioral interventions in restructuring patients’ cognitive, behavioral, spiritual, and environmental needs following traumatic brain injury. Still other integrative techniques, such as nutritional/herbal therapies, acupuncture, and exercise regimens like yoga and Qigong, hold promise as effective integrative multidisciplinary therapies. The physiologic support to the brain after acute injury includes such interventions as control of edema, oxygenation of brain tissue, and support of other bodily functions, such as the circulatory and respiratory systems during vital times of early brain healing. Also, pharmacologic interventions to improve the balance of altered neurochemistry in the setting of brain damage can optimize recovery of the damaged brain tissue. Pharmacologic interventions beyond the acute phase to address biochemical imbalances that persist even beyond the time course of normal healing may be up to several months to a few years after brain injury. Hence, rehabilitation efforts in the form of pharmacologic interventions may extend well beyond the time course of physical healing. Rehabilitation in the form of neurocognitive and neurobehavioral therapies also applies both to the acute brain injury situation and in a more chronic context. There is certainly controversy and conflicting data regarding the extent of benefit from neurocognitive interventions with regard to the ultimate functional result after brain injury. An argument certainly can be made that at least the rate of improvement is better for individuals receiving the benefit of neurocognitive retraining following brain injury. A body of literature also supports the argument that the extent of recovery is better when neurocognitive interventions are applied during the healing process after brain injury. Even in the subacute and chronic time frames after brain injury, neurocognitive interventions certainly have been demonstrated to be beneficial, at least with regard to compensatory strategies that aid in an individual’s functional status. Again, various integrative techniques directed at the multifactorial dimensions of a person’s challenges following a brain injury are increasingly used to address the cognitive, behavioral, social, spiritual, and environmental dimensions of a person’s challenges after traumatic brain injury. These therapies address a person’s aesthetic needs, adaptive social functioning, and environmental strategies that can optimize a person’s chances for success in community transition.

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In situations where an individual lacks adequate social controls due to disinhibition, etc., neurobehavioral strategies can also be quite useful (both acutely and chronically). Strategies such as increased environmental structure and behavioral programming can often optimize an individual’s functioning, particularly in conditions related to agnosia (impairment in judgment and insight). Therefore, when considering issues of appropriate neurorehabilitation after brain injury, the natural history (physical recovery) must be taken into account, as should the severity of the brain injury, in dictating neurorehabilitation needs. The spectrum of neurologic deficits is an integral part of the analysis of neurorehabilitation as well. It should be mentioned that, within such strategies as pharmacologic interventions, neurocognitive therapies, behavioral therapies, and environmental supports, there are many modalities that should be offered as options to address this broad spectrum of pathology post-brain injury.

2.6 Conclusion It is evident from the previous discussion that the realm of the neurologic diagnosis is quite a complex endeavor. The interface between neurologic diagnosis and forensic concerns adds yet another level of complexity. This topic is manageable only with a basic understanding of some of the standard principles of neurologic diagnosis previously elucidated. Certainly, this treatment is not intended to be a comprehensive examination of neurologic concerns that may enter into the forensic arena. Rather, established standard diagnostic processes pertaining to neurologic conditions, including TBI, will engender a method of logically addressing such problems. Hence, a logical methodology of approaching the neurologic issues of TBI will serve as a solid foundation even as some of the exciting technologies aiding neurologic diagnoses are advanced. Again, it is the established standard methodology of neurologic diagnosis as presented above that will stand the test of time and lead to the most credible forensic analyses of neurologic concerns, including TBI.

References American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders, 4th ed., text revision. American Psychiatric Association, Washington, DC. Aminoff, M.J. (1986). Electrodiagnosis in Clinical Neurology. Churchill Livingston, New York. Brandão, L.A. and Domingues, R.C. (2004). MR Spectroscopy of the Brain. Lippincott Williams & Wilkins, Philadelphia. Cecil, K.M., Hills, E.C., Sandel, M.E., Smith, D.E., McIntosh, T.K., Mannon, L.J., Sinson, G.P., Bagley, L.J., Grossman, R.I., and Lenkinski, R.E. (1998). Proton magnetic resonance spectroscopy for detection of axonal injury in the splenium of the corpus callosum of brain-injured patients. Journal of Neurosurgery, 88, 795–801. Danielsen, E. R. and Ross, B. (1999). Magnetic Resonance Spectroscopy Diagnosis of Neurological Diseases. Marcel Dekker, New York, pp. 5–22. DeJong, R.N. and Hearer, A.F. (1998). Case taking and the neurologic examination. In Clinical Neurology, Joint, R.J. and Griggs, R.C., Eds. Lippincott, Williams & Wilkins, Philadelphia.

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Folstein, M.F. (1975). Mini-mental state. Journal of Psychiatry Research, 12, 189–198. Gale, S.D., Johnson, S.C., Bigler, E.D., and Blatter, D.D. (1995). Trauma-induced degenerative changes in brain injury: a morphometric analysis of three patients with pre-injury and post-injury MR scans. Journal of Neurotrauma, 12, 151–158. Garada, B., Klufas, R.A., and Schwartz, R.B. (1997). Neuroimaging in closed head injury seminars. Clinical Neuropsychiatry, 2, 188–195. Gowda, N.K., Agrawal, D., Bal, C., Chandrashekar, N., Tripati, M., Bandopadhyaya, G.P., Malhotra, A., and Mahapatra, A.K. (2006). Technetium Tc-99m ethyl cysteinate dimer brain single-photon emission CT in mild traumatic brain injury: a prospective study. American Journal of Neuroradiology, 27, 447–451. Hammeke, T.A. (1999). Clinical applications of functional magnetic resonance imaging. In Current Topics in Brain Injury Rehabilitation. Mayo Clinic Center, Rochester, MN. Lotze, M., Grodd, W., Rodden, F.A., Gut, E., Schonle, P.W., Kardatzki, B., and Cohen, L.G. (2006). Neuroimaging patterns associated with motor control in traumatic brain injury. Neurorehabilitation and Neural Repair, 20, 14­–23. Malec, J.F. (1998). Mild Traumatic Brain Injury: Concepts and Controversies. Paper presented at the 1998 Brain Injury Conference, Mayo Medical Center, Rochester, MN. Mayberg, H.S. (1996). Medical-legal inferences from functional neuroimaging evidence. Seminars in Clinical Neuropsychiatry, 1, 195–201. Mayo Clinic. (1991). Clinical Examinations in Neurology. Mayo Clinic and Mayo Foundation for Medical Education and Research, Mosby Year Book, St. Louis, MO. McAllister, T.W. and Green, R. (1998a). Neurobehavioral consequences for traumatic brain injury. Seminars in Neuropsychiatry, 3, 157–241. McAllister, T.W. and Green, R., Guest Eds. (1998b). Neurobehavioral consequences of traumatic brain injury. Seminars in Clinical Neuropsychiatry, 3. Murrey, G.J. (2006). Alternate Therapies in the Treatment of Brain Injury and Neurobehavioral Disorders. Haworth Press, New York. Nora, L.M. and Nora, R.E. (1999). Selected legal issues in movement disorders. Neurologic Clinics, 17, 257–266. Popkin, M.K., Guest Ed. (1997). Neurobehavioral aspects of diabetes mellitus. Seminars in Clinical Neuropsychiatry, 2. Restale, R.M., Guest Ed. (1996). Brain damage and legal responsibility. Seminars in Clinical Neuropsychiatry, 1. Restale, R.M., Guest Ed. (1997). Neuropsychiatry of minor head injury. Seminars in Clinical Neuropsychiatry, 2. Savoy, R.L. and Gollub, R.L. (2004). Functional magnetic resonance imaging. In Essentials of Neuroimaging for Clinical Practice, Dougherty, D.D., Rauch, S.L., and Rosenbaum, J.F., Eds. American Psychiatric Press, Washington, DC, pp. 93–104. Thatcher, R.W., Camacho, M., Salazer, A., Linden, C., Biver, C., and Clarke, I. (1997). Quantitative MRI of the gray-white matter distribution in traumatic brain injury. Journal of Neurotrauma, 14, 1–14. Treiman, D.M. (1999). Violence and the epilepsy defense. Neurologic Clinics, 17, 245–255. Tsushima, W.T. and Nakano, K.K. (1998). Effective Medical Testifying, a Handbook for Physicians. Butterworth-Heinemann, Boston. Weintraub, M.I. (1997). Malingering and Conversion Reactions. Paper presented at the American Academy of Neurology 49th Annual Meeting, Boston. Weiss, Z. (1996). The legal admissibility of positron emission tomography scans in criminal cases. Seminars in Clinical Neuropsychiatry, People vs Spyder Cystkopf, 1, 202–210.

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The Forensic Neuropsychiatric Assessment of Traumatic Brain Injury Robert Granacher

Contents 3.1 3.2 3.3 3.4 3.5

Introduction.................................................................................................... 43 Forensic Neuropsychiatric History................................................................ 45 Neuropsychiatric Mental Status Examination............................................... 48 Neurological Examination............................................................................. 49 Structural and Functional Brain Imaging...................................................... 52 3.5.1 Computed Tomography....................................................................... 52 3.5.2 Magnetic Resonance Imaging............................................................ 53 3.5.3 Single-Photon Emission Computed Tomography............................... 54 3.5.4 Positron Emission Tomography.......................................................... 55 3.5.5 Functional Magnetic Resonance Imaging.......................................... 56 3.5.6 Magnetic Resonace Spectroscopy...................................................... 56 3.6 Clinical Laboratory Assessment.................................................................... 57 3.7 Standardized Neurocognitive Assessment..................................................... 59 3.8 Record Review...............................................................................................60 3.9 Neurobehavioral Analysis.............................................................................. 61 3.10 Neuropsychiatric Diagnoses.......................................................................... 63 3.11 Forensic Neuropsychiatric Conclusions......................................................... 63 References................................................................................................................. 63

3.1 Introduction The methodology for evaluating a traumatic brain injury (TBI) — whether for treatment purposes or forensic purposes — is equivalent. However, there are distinct differences between a neuropsychiatric examination for treatment purposes and that for use in a legal framework; these are discussed in detail elsewhere (Granacher, 2003). When a physician examines a person for treatment following traumatic brain injury, that physician is unconcerned about issues of causation, potential malingering, financial damages, or any other legal constructs that may have great importance in 43

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a legal setting. Moreover, the rules, standards, and ethics for a forensic examination are very different from those for a treatment examination. The treating physician is at all times to follow the Hippocratic Oath, and to function as his or her patient’s health care advocate. On the other hand, advocacy by a physician is not allowed in an expert witness framework. The examining physician, who is to function as an expert witness, acts as an agent of a third party. In general, the plaintiff lawyer, the defense lawyer, or, at times, the court, to perform an independent evaluation of an injured person’s mental state, hires the physician. This examination is required to be impartial and should be based upon ethical principles guiding forensic medical examinations. For a neuropsychiatric examination, the physician will be a psychiatrist or a psychiatrist/neurologist, in most instances. Thus, the ethical principles of the American Academy of Psychiatry and the Law (2004) will apply here. Whereas the treating physician is an advocate for the patient, the physician acting in a forensic matter is the agent for whomever hired the physician. The forensic physician is not an agent for the examinee, and is obligated to tell the examinee this at the time of the examination. Also, the forensic physician should advise the examinee that no doctor–patient relationship exists, and that no treatment recommendations will be offered. The expert witness physician is always functioning as a consultant. The consulting portion of providing forensic services usually occurs early on in the relationship between the forensic physician and the employer (lawyer, judge, etc.). The lawyer or other party in a legal situation may require counsel about the nature of the examination and the skills of the forensic physician. The role of consultant almost always antedates the role of being a witness (Weinstock and Garrick, 1994). By functioning as an expert, the forensic physician enters into a business arrangement with the attorney or entity (the employer) requesting the examination, and is hired within the context of a medical-legal evaluation. The expert is selling time, analytical skill, medical knowledge, and consultation. Testimony is never for sale in this business arrangement. It is the physician’s expertise, clinical and forensic skills, medical knowledge, and time that are sold contractually within the context of a forensic neuropsychiatric examination. From a functional standpoint, the forensic physician is a teacher–consultant. The physician consults in order to teach the attorney about the scope and limits of the neuropsychiatric brain injury examination and, if asked to testify, will become a teacher to the jury, judge, or other trier of fact. While the forensic physician is instructed never to be an advocate for the examinee in a forensic neuropsychiatric setting, the physician should be an advocate for his or her opinions. It is perfectly ethical for physicians to advocate for their opinions. In fact, if one does not diplomatically act as an advocate for his or her opinions, the trier of fact may sense the physician’s lack of commitment to the message given. Within a forensic neuropsychiatric examination, there are clear boundary issues that must be respected. Examinees do not distinguish clearly the difference between a treatment and a forensic examination. Examinees often believe that when they see an authoritative physician, that physician is functioning in a manner no different than their own family doctor. It is recommended that a clear explanation be provided to an examinee about the scope and limits of the forensic examination, and this should be supplemented in writing, if necessary. It is not unusual for an examinee to ask the forensic physician within the scope of the examination what he or she thinks

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about various tests or other physicians’ opinions. It should be made clear to the examinee that the physician is to provide the results of the examination to the entity or person who hired the physician, and the examinee should seek to obtain further advice from his or her lawyer. The following are the components of a sound forensic neuropsychiatric examination for expert witness purposes: 1. Forensic neuropsychiatric history 2. Neuropsychiatric mental status examination 3. Neurological examination 4. Structural and functional brain imaging 5. Clinical laboratory assessment 6. Standardized neurocognitive assessment 7. Medical record and document reviews 8. Neurobehavioral analysis 9. Neuropsychiatric diagnoses 10. Forensic neuropsychiatric conclusions

3.2 Forensic Neuropsychiatric History The content of the neuropsychiatric history for forensic purposes is the same as for treatment purposes. However, the forensic neuropsychiatric history will emphasize certain points that may or may not be relevant in a treatment neuropsychiatric history. For instance, causation, damages, outcomes, and impairment determinations have great legal importance, but may have little treatment importance. A treating neuropsychiatrist treats a brain injury, regardless of causation. On the other hand, a forensic neuropsychiatrist must draw conclusions regarding whether a particular event caused the brain injury in question. Personal injury lawyers tend to follow a sequence to prove causation by using an expert witness who offers the opinion that a specific trauma caused by the defendant was a substantial or material contributing factor in producing the plaintiff’s current symptoms (Barton, 1990). Therefore, the forensic neuropsychiatrist needs to establish by history the nature of the trauma. The examinee, if actually brain injured, may have no memory for this whatsoever, and little can be obtained by history directly from the examinee. The physician will be required to develop the facts about causation from available records and collateral sources. Other elements in the neuropsychiatric history should be used to develop testimony about damages. It is usually the issue of damages wherein the neuropsychiatric examiner will play the greatest role in litigation or a trial. From a practical standpoint, the plaintiff wants to prove maximal damages from the alleged traumatic brain injury, whereas the defendant wants to prove minimal or no damages as a result of the alleged traumatic brain injury. For the neuropsychiatric physician, the major issue in damages is outcome. Outcome then should be translated to impairment. The forensic neuropsychiatrist has then completed his role for the agent who hired him. The monetary aspects of damages will be left to life care planners, economists, and other such experts. As the neuropsychiatric history is developed, outcomes should be determined. The physician must carefully question the examinee’s current abilities in activities of daily living in order to arrive at a functional outcome determination

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Table 3.1 General Elements of the Neuropsychiatric History Following Brain Trauma Chief complaint Are there problems with:   Attention?   Speech and language?   Memory or orientation?   Visuospatial or constructional ability?   Executive function?   Affect and mood?   Thought processing or perception?   Risk to self or others? What are the current treatments?   Antidepressants   Mood stabilizers or antiepileptic drugs   Lithium salts   Neuroleptic drugs   Anxiolytics   Cholinergic or glutamate cognitive enhancers   Psychostimulants   Dopamine agonists   Cognitive rehabilitation   Individual psychotherapy   Family psychotherapy

based on imaging, mental status examination, neurological examination, and neurocognitive assessment. In general medical practice, the physician begins the history by asking for a chief complaint and then taking the historical information regarding the present illness. The neuropsychiatric examination in a traumatic brain injury proceeds in the same fashion. However, the neuropsychiatric physician is required to determine the general witness competency of the examinee at the time the history is taken in order to determine whether the individual is a capable historian; if not, collateral information will be required and the neuropsychiatric examiner should then interview knowledgeable family members, guardians, or others who have the ability to provide historical observations of the examinee. Many persons who sustain a brain injury are amnestic for the event or may have lingering permanent cognitive deficits, which render them unreliable historians. Table 3.1 lists the mental functions that should be questioned in detail while taking the neuropsychiatric history. Screening questions regarding attention should focus on the person’s ability in real-world settings to attend auditorily, visually, and tactilely. Questions regarding hypersomnolence affecting attention should be asked. Some persons with attentional deficits may present with symptoms of impersistence, perseveration, distractibility, or inability to inhibit immediate but inappropriate responses (Mesulam, 2000).

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Speech and language are assessed by asking the person whether she has noticed difficulty with articulation of words or pronouncing words. Detection of language errors by history is difficult, and this may require collateral information from family members or others; this is probably best determined by asking if communication skills have changed following injury and then following up with specific examination techniques to determine if language has been affected. Questions about personality changes are relevant here because in many brain injured persons they may present with dysprosody (an impairment of the production, comprehension, and repetition of affective elements of language) due to right brain damage (Bowers et al., 1993). Memory questions are fairly easy to construct during history taking. Factual or declarative memory should be explored by asking the examinee directly or by interviewing family members. Episodic memory requires specific questions to determine directly if the person is aware of events as they transpire in his life, and whether these events are stored in the memory apparatus. Asking about procedural memory generally is usually not required, as this has a low likelihood of being affected in traumatic brain injury. Historical items regarding visuospatial and constructional abilities can be detected by asking about topographic orientation, geographic orientation, and whether the examinee can locate himself in space. Questions regarding executive function should explore changes in motivation or ability to stay interested. The examinee’s ability to plan for the future should be assessed. A determination should be made of the examinee’s ability to self-monitor impulsiveness, aggressive thoughts, and other executive functions. Changes in affect or mood regulation often occur following brain trauma and should be explored. Asking an examinee how she processes thoughts is difficult at best; simple questions as to whether the person feels confused or addled may suffice so that the examiner may confirm the presence of a thought disorder by more sophisticated neuropsychological testing. All persons following brain trauma should be asked about risk to themselves, suicidal ideas, or aggressive or homicidal impulses. With regard to treatment following brain trauma, the delineation of treatments is important to the neuropsychiatric examination. The neuropsychiatric expert may be asked to assist with the determination of future costs for treatment; therefore, the forensic neuropsychiatric examiner should explore the current treatments provided to the examinee as noted in Table 3.1. Within the neuropsychiatric history, it is important to supplement with the other standard elements of any medical history; these include:

1. Past medical history 2. Past neuropsychiatric history 3. Family history 4. Social history 5. Legal history 6. Review of systems

If a child is evaluated, it is important to determine the history of labor and delivery of the mother, the neuropsychiatric developmental history of the child, and past pediatric and school history.

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Table 3.2 Common Elements of Neuropsychiatric Mental Status Examination Appearance and level of consciousness Attention Speech and language Memory and orientation Visuospatial and constructional ability Executive function Affect and mood Thought processing, content, and perception Risk to self or others

3.3 Neuropsychiatric Mental Status Examination The modern mental status examination came as a result of clarification by Adolph Meyer of Johns Hopkins University early in the 20th century. A more extensive review of current mental examination procedures and techniques may be found in texts by Trzepacz and Baker (1993), Strub and Black (2000), and Lezak (2004). These texts give a psychiatric, neurological, and neuropsychological perspective to the mental status examination within these three disciplines. The mental status examination is a screening method whereby the neuropsychiatric examiner may hope to detect specific neuropsychiatric disorders within the domains described in Table 3.2. The child examination is essentially the same, with the questions and observations provided at the level of the child’s development. The techniques of Larsen (2006), Kestenbaum (1997), and Menkes (1995) will assist the examiner with developing an appropriate schema for interview and examination of the neuropsychiatric mental status in the child. From a forensic standpoint, plaintiff lawyers in particular often place great weight on the findings of an initial mental status examination at the point of injury. If the examinee’s Glasgow Coma Scale (GCS) was 13 at the time of admission to an emergency room, months or years later the plaintiff lawyer will argue that this is evidence of a permanent traumatic brain injury. The purpose of the neuropsychiatric mental status examination well after the original injury is to determine by screening whether indicia of brain trauma are present in real time on a face-to-face examination. Recent studies in brain trauma indicate that there is limited predictive ability from the initial mental status examination or Glasgow Coma Scale to the eventual outcome of the injury. For instance, many clinicians would feel that a finding of aphasia (loss of language ability) at the time of the original injury is a negative prognostic indicator; studies suggest that this is not the case. The presence of aphasia vs. nonaphasic patients is not predictive of a significant difference in functional independence at the time of discharge from a rehabilitation facility (Ozbudak et al., 2006). Even the esteemed Glasgow Coma Scale has limited predictive ability. In patients with GCS = 13 or 14 compared to patients with GCS = 15 at 5 to 6 months

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postinjury, no significant difference emerged for indices of neuropsychiatric status, including measures of neurobehavioral symptoms or signs and overall psychological distress (McCullagh et al., 2001). The Galveston group has attempted to validate the Neurobehavioral Cognitive Status Examination (NCSE) in a postacute rehabilitation setting and found that the classification agreement between most NCSE subtests when compared to neuropsychological tests was poor (Wallace et al., 2000). Thus, while no neuropsychiatric examination is complete without a mental status examination, from a forensic standpoint, use of an examination within 6 months of injury to predict future outcome has a very low validity. With regard to the mental status examination itself, level of consciousness is easy to detect and generally is graded as alert, lethargic, obtunded, stuporous, or in coma. Attention and concentration are generally assessed using visual and auditory cues. The digit span is a simple measure of auditory attention, but visual attention on a standard mental status examination is difficult to detect without performing metrics. Speech and language are assessed by listening and observing the motor aspects of speech and, at the same time, listening for paraphasic or dysphasic alterations of language. Orientation is easy to assess by standard questions of person, place, time, and location. Memory, on the other hand, can only be screened in a very cursory fashion by asking an individual to remember four novel words at 3 to 5 minutes (Strub and Black, 2000). More sophisticated neuropsychological assessment is required in order to determine whether memory is functioning normally. Constructional ability can be screened easily by drawing a clock or simple geometric designs; these may reveal a visual field cut. Handwriting is often an excellent indicator of constructional ability as to whether the person can write on a line, and it is a sensitive indicator of micrographia and tremor. Executive function can be surmised based on historical indicators, but its detection on face-to-face neuropsychiatric examination is limited at best, and standardized assessments using the Category Test, the Wisconsin Card Sorting Test, or other dysexecutive measures will provide better information. Affect and mood can be detected by direct observation and interview. Thought and motor speed, as a cognitive and motor component of mood, can generally be easily detected by face-to-face observation. Thought processing, content, and perceptual abilities can be screened by determining if the person can think rationally, provide logical information, and self-monitor language. Risks to self or others can be evaluated only by observation and asking specific questions. Most psychometric instruments are poor for detecting suicidal risk.

3.4 Neurological Examination The neurological examination functions basically as a clinical qualitative measure of the input and output functions of the brain. Assessment of the various neurological domains, as outlined in Table 3.3, allows the neuropsychiatric examiner to detect markers of insult to the brain represented by alterations in reflexes or peripheral neurological functioning. The neurological examination also allows the forensic neuropsychiatric examiner to determine laterality or changes in brain function, which are represented peripherally — usually on the side opposite the brain lesion. The neurological examination may or may not be conducted by the neuropsychiatric examiner.

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Table 3.3 Neurological Examination Cranial nerve examination Motor examination Detection of abnormal involuntary movements Sensory examination Muscle stretch reflexes Cerebellar examination Vestibular examination Posture and gait

Whether the examination is required depends on the presence of prior neurological examinations performed by neurosurgeons and neurologists. In some cases, by the time the examinee gets to the forensic neuropsychiatrist, multiple neurological examinations have been performed; if these have been uniformly negative in the time immediately prior to the neuropsychiatric examination, little is to be gained by repeating the examination at the neuropsychiatric level. On the other hand, if there have been limited neurological examinations immediately prior to the neuropsychiatric assessment, the neuropsychiatrist probably should undertake a complete neurological examination; this generally begins with the examination of the cranial nerves. It is not unusual in a patient who suffered a frontal lobe injury to sustain injury to cranial nerve I; this will be detected by the inability to smell or the inability to appreciate ordinary odors. Common environmental odors and odors that have been learned by the examinee through his or her lifetime should be used; these can include common substances such as anise oil (licorice), peppermint or spearmint oils, and other similar stimuli. Traumatic brain injury often results in a persistent visual field defect; this will be detected by confrontational examination of cranial nerve II in all four quadrants. Orbital wall fractures can lead to injury of cranial nerves III, IV, and VI; injuries to these nerves will affect the horizontal and downward gaze negatively. A facial fracture may involve any of the three branches of the trigeminal nerve (cranial nerve V). A basilar skull fracture into the petrous bone can sometimes also injure this nerve. If the sensory branches of nerve V are injured, hemianesthesia in the face will be found in one or all of the three branches. Motor function of nerve V will reveal weakness in clenching the jaw, as the masseter or temporalis muscle power will be diminished on the same side as the injury. A fracture of the temporal bone often injures cranial nerve VII; this will result in weakness to muscles of the upper and lower face on the side of the injury, causing a droop in the muscles of facial expression and an inability to normally grin, purse lips, raise eyebrows, and tightly close eyes. Facial asymmetry can be detected visually in these cases. Cranial nerve VIII is frequently injured; this usually affects the ability to hear on the side of the injury. A longitudinal fracture of the temporal bone caused by a lateral blow to the head may also disrupt the ossicles in the inner ear. If the cochlear branch of nerve VIII is injured, hearing will be impaired. On the other hand, if the labyrinthine branch is damaged, this will affect the vestibular system, and dizziness and

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impairments of balance or coordination can be detected. The examination of cranial nerves IX and X cannot be separated from a practical standpoint. Injuries to these nerves only rarely occur in traumatic head injury. A basilar skull fracture extending into the foramen magnum can cause injury, and in those cases the individual may demonstrate impaired ability to phonate the roman letter E, impaired swallowing, and impaired taste for the posterior one third of the tongue. The gag reflex will be reduced on the side of injury. Nerve XI supplies motor function to the nerves that raise the shoulder and turn the neck. This is a rare injury, but it can occur with a basilar skull fracture. The rule of opposites applies to the sternocleidomastoid muscles. If the right side of cranial nerve XI is injured, the examinee will have difficulty rotating his head to the left. On the other hand, trapezius muscle testing will demonstrate weakness of shoulder shrugging on the same side as the injury. Cranial nerve XII carries motor fibers to the muscles of the tongue. It is rarely affected in a patient sustaining traumatic injury to the head, except in the rare Collet–Sicard syndrome following injuries to nerves IX to XII. This is occasionally seen following fractures of the occipital condyle. If nerve XII is injured, when the examinee protrudes her tongue, it will deviate to the side of the injury and reveal atrophy. The motor examination is completed by examining muscle tone and muscle strength and observing for abnormal involuntary movements of muscles. The sensory examination is used to determine losses of sensation from direct injury to the brain, brainstem, or spinal cord. When particular nerve roots are involved in exiting the spinal cord, the loss of sensation will follow a dermatomal pattern over the body. However, if the thalamus in the brain is injured, the loss of sensation will not follow a dermatomal pattern and will be a dense sensory loss over the affected side of the body. The examination of motor stretch reflexes by tapping the biceps tendon, triceps tendon, patellar tendon, etc., is used to detect spasticity as a result of brain injury. If one injures a nerve root coming out of the spinal cord, reflexes are absent or reduced in the affected motor distribution. On the other hand, deep brain injury affecting muscle distribution to the body will result in a spastic injury causing hyperreflexic responses. Thus, a tap at the knee will cause a brisk kick of the toe if the pathways from the brain to the leg have been involved. If pathways to the arm are involved, the biceps reflex will be brisk and the hand will flail upward as the biceps tendon is stretched with the reflex hammer. The cerebellum examination is used to detect lack of fine coordination. As noted above, one can have alterations of balance from injury to nerve VIII or the inner-ear apparatus itself. If the cerebellum is damaged, the person cannot gauge distance well with the hand, and will overshoot or undershoot an intended target using the finger or foot; rapid alternating movements of the hand will be impaired, and a reduction in speed and skill while performing complex movements will be observed. If the person attempts to touch his nose with the outstretched index finger — if the cerebellum has been damaged — as the finger nears the nose, an intention tremor of the hand and fingers will be noted. Traumatic brain injury frequently causes difficulty with maintaining one’s balance. A sensitive method of detection is to ask the person to walk alternately with heel touching toe on a straight line; dystaxia will be detected by a fall to either the right or the left and the inability to maintain posture. Deep brain injury affecting

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Table 3.4 Structural and Functional Brain Imaging during Neuropsychiatric Assessment Structural Imaging Computed tomography (CT) Magnetic resonance imaging (MRI) Functional Imaging Single-photon computed tomography (SPECT) Positron emission tomography (PET) Functional magnetic resonance (fMRI) Magnetic resonance spectroscopy (MRS)

motor power to the upper extremities can be detected by having the examinee extend her arms horizontally in front of her; the weakened arm will drift and hang lower than the opposite arm. In serious brain injuries, hemiparesis may result; this will be detected as a limp on the affected side; the arm will be held in a flexed posture against the body as the individual walks. The deep tendon reflexes will be hyperbrisk on the affected side, and general loss of muscle power will be present in the arm and the leg. For further study regarding the elements of the neurological examination following traumatic brain injury, refer to Granacher (2003), Kaufman (1995), and Haerer (1992).

3.5 Structural and Functional Brain Imaging A thorough neuropsychiatric examination of a person claiming brain injury in a forensic case cannot be completed without structural brain imaging at a minimum and additional functional brain imaging where indicated. However, in a forensic situation, the neuropsychiatric examiner must be very careful when ordering functional neuroimaging. Functional brain imaging (SPECT, PET, and fMRI) is very sensitive to the physiological and emotional state of the examinee at the time the image is made. Therefore, SPECT, PET, and other nuclear medicine imaging techniques should not be used as stand-alone images without concomitant structural imaging for anatomical localization and correlation. Table 3.4 lists the most common structural and functional images made of persons complaining of traumatic brain injury.

3.5.1  Computed Tomography Computed tomography is an x-ray technique using the same basic technology as plain-film x-rays. Instead of passing the x-ray through the body to a photographic film on the opposite side, CT scanning rotates the x-ray beam around the body, and as the x-rays are transmitted through the body, they are received by a detector on the opposite side. Measurement is accomplished with a paired x-ray source and a detector positioned 180° from the x-ray beam. For a head CT, this apparatus rotates around one plane of the head and the attenuation (absorption by matter) of the x-ray

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beam is measured at multiple points throughout a 360° arc around the body. A computer-assisted algorithm is used so that an image of the structures within the slice is constructed from multiple measurements taken around the slice. The brain slice through which the x-rays traverse is separated into a grid. Each box in the grid (a voxel or a pixel) represents a small area of the slice. An attenuation value for each voxel within the slice may be calculated. By convention, water is assigned a value of 0, and then each voxel is assigned an attenuation value from +500 to –500; these are called Hounsfield units. The representation of the attenuation for all the voxels of the grid produces a structural image within that plane. To enhance detection of breaches of the blood-brain barrier, intravenous contrast agents may be used. Traditionally, CT of the head remains the primary method for evaluating closed head injuries in the emergency room and ICU. It produces a rapid acquisition of data and an intubated or electronically monitored patient can be placed into the CT scanner without fear of disrupting electronic equipment with powerful magnets, such as used in MRI. The images produced generally show cerebral spinal fluid (CSF) as dark black. Gray matter is seen as a lighter gray, whereas white matter, being less dense than gray matter, appears slightly darker. Bone (the most dense) is generally a bright white color. The pathology following brain trauma that is best visualized by CT includes acute hemorrhage (particularly subarachnoid hemorrhage), calcified brain areas, and fractures. A subdural hematoma typically appears as a crescentic lesion between the skull and the brain, and the blood clot follows the gyral pattern of the brain surface. An epidural hematoma typically is seen as a high-density, bright, biconvex lesion between the skull and the brain. Contusions or bruises are often seen as hypodense (dark) lesions within the brain parenchyma. Following traumatic brain injury, they are frequently located in the frontal or temporal lobes. Diffuse axonal injury (DAI) can also be detected by CT.

3.5.2  Magnetic Resonance Imaging Magnetic resonance imaging (MRI) uses the magnetic properties of the atomic constituents of biological matter to construct a visual representation of tissue. For brain, the atomic constituents are usually hydrogen as a component of water. Unlike CT, MRI uses electromagnetic radiation and does not involve exposure to ionizing radiation such as x-rays. MRI does not carry the burden of aggregate radiation exposure, and multiple imaging can be safely made. However, any ferromagnetic material, such as iron deposits or nickel deposits, can be disrupted or moved by the powerful magnets if present in the body of the person imaged. All MRI scanners have a static magnet. The magnetic field strength is measured in units of Tesla (T). Modern MRI scanners generally have magnets in the range of 1.5 to 3.0 T. However, open scanners have relatively weaker magnets (0.3 to 0.6 T) and may make inferior scans. When the protons within the body are placed in a magnetic field, they assume two possible orientations or states. A radio frequency pulse is synchronized with the resident frequency of the protons to bring them into coherence or phase alignment. When the protons are in phase, it is possible to detect a signal. The signal that is received by the MRI detector is generally of two types, T1 or T2. Substances in the brain with a short T1 produce high signals on T1-weighted

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imaging; these substances include fat, methemoglobin from blood breakdown products, and paramagnetic contrast agents. T1 images are best for visualizing normal anatomy. On the other hand, T2-weighted images highlight fluid-containing regions; thus, all normal cerebrospinal fluid spaces have high signals. T2-weighted images, which highlight tissue with high water content, demonstrate brain pathology as higher signal intensities. T2-weighted images are useful for evaluating hydrocephalus, ischemic injury to white matter, and diffuse axonal injury. Modern MRI contains some newer sequence types, including fluid-attenuated inversion recovery (FLAIR), diffusion-weighted imaging (DWI), gradient echo imaging (GE), and diffusion tensor imaging (DTI). FLAIR is a computer-processed reconstruction of T2-weighted images and provides excellent contrast resolution at brain–CSF interfaces. Lesions that might otherwise be obscured on routine T2weighted images by high signals from normal adjacent cerebrospinal fluid become conspicuous on FLAIR. Edema-generating pathology and white matter lesions, including demyelinating processes, are especially highlighted with FLAIR. FLAIR has increased the likelihood that white matter lesions are detected. DWI is a relatively new technique that allows the detection of small differences in the diffusion of populations of water molecules. It has made its greatest impact on the diagnostic imaging of acute ischemia (reduced or constricted blood flow). DWI can reveal ischemic brain tissue, even after the associated neurological deficit has normalized (Inglese et al., 2005). Outside brain trauma, it has proved its usefulness in probing the pathophysiology of migraine, and following traumatic brain injury some individuals develop a traumatic migraine syndrome. Conventional MRI can reliably identify subacute bleeding (more than 48 hours old), but acute hemorrhage is not easily detected. Moreover, blood undergoes a series of appearance changes on conventional MRI, switching from dark to bright, then back to dark on T1-weighted images over time. Gradient echo MRI can demonstrate both acute and chronic hemorrhage as extremely low signals — essentially appearing black. GE can reveal any type of hemorrhage, such as epidural, subdural, subarachnoid, or intraparenchymal. GE complements the diagnostic characterizations provided by FLAIR and DWI, and these can distinguish hemorrhagic from ischemic strokes. DTI is a powerful new imaging technique that provides a means for evaluating brain structure — particularly the integrity of white matter at a microstructural level. It currently remains primarily a research tool, but its clinical utility should be available within a few years. For instance, this technique has been used to determine the microstructure of white matter as a basis for reading ability (Klingberg et al., 2000). Table 3.5 outlines the optimal uses of structural brain imaging.

3.5.3  Single-Photon Emission Computed Tomography Single-photon emission computed tomography (SPECT) differs from PET by important physical properties. The emission of the radioactive drug injected into the person measured by SPECT does not result from a positron–electron collision; instead, SPECT nuclides capture orbiting electrons in order to return to a more stable state. This produces single photons that travel in only one direction — unlike the dual photons in PET nuclides, which travel in opposite directions. The most common

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Table 3.5 Common Uses of Structural Brain Imaging Image Type

Best for Revealing

CT

Acute hemorrhage, contusions, DAI, calcium deposits, and fractures

MRI sequence: T1 T2 FLAIR DWI GE DTI

Normal anatomy, fat, methemoglobin, and contrast agents Fluid-containing regions, ischemic injury of white matter and DAI Edema and white matter lesions Persistent ischemia Acute and chronic hemorrhage Microstructure of white matter

radiopharmaceuticals used to make SPECT images are nuclides of radioactive technetium-99 or radioactive iodine-123. The SPECT camera is designed to detect the emissions of single photons from these radiopharmaceuticals after injection into the examinee. Recall above that SPECT and other nuclear medicine imaging techniques should be obtained with concomitant structural imaging for anatomical localization and correlation. However, SPECT has the ability to detect blood flow changes that are not detected by structural imaging such as CT or MRI. An individual can sustain cognitive impairment or a mild traumatic brain injury and show evidence of blood flow alteration on SPECT, which does not represent as a lesion on MRI or CT. It has been shown recently that SPECT can detect loss of neuronal integrity in patients who have sustained a traumatic brain injury without an MRI abnormality in the chronic stage (Pavel et al., 2006). Compared to CT, SPECT demonstrates a much higher sensitivity for detecting an organic basis in a subgroup of patients with clinical features such as posttraumatic amnesia, postconcussion syndrome, and loss of consciousness (Gowda et al., 2006). There is evidence that neuropsychological testing abnormalities may correlate with deficits found on functional imaging such as SPECT when applied to head trauma patients. Moreover, improvements in testing results have shown correlation with decreased brain perfusion detected by SPECT in these patients (Dougherty et al., 2004).

3.5.4  Positron Emission Tomography The differences in detection of emissions of SPECT vs. PET are noted above. Positron emission tomography (PET) uses a camera, which detects the gamma rays resulting from the positron–electron annihilation event. Radionuclides of oxygen-15, nitrogen-13, carbon-11, and fluorine-18 are the most common radiopharmaceuticals used in PET studies. If one wishes to measure blood flow with PET, oxygen-15 nuclides are usually chosen. If, on the other hand, the examiner wishes to detect metabolic changes in brain function, fluorine-18 radiopharmaceuticals comprised of glucose analogs are usually chosen (F-18 FDG). PET has wider applications than SPECT — not only in brain trauma, but also in general medicine. PET is becoming the nuclear imaging of choice for detecting tumor margins and tumor treatment in oncology.

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Some patients are noted to have severe brain dysfunction but display no abnormalities on magnetic resonance imaging. A recent study reviewed PET to determine the cerebral metabolic rate of oxygen and the binding potential of carbon-11 flumazenil in patients with normal MRI findings but evidence of abnormal cognition. These studies had coincidental MRI with axial T2-weighted and FLAIR images. In this particular study with normal MRI findings, 60% of patients revealed a low uptake of flumazenil binding and low cerebral metabolic rate of oxygen. On the other hand, some patients had a low cerebral metabolic rate of oxygen without evidence of abnormal flumazenil binding. Those patients who revealed hypometabolic lesions showing low binding of flumazenil were concluded to have a loss of neuronal integrity. Flumazenil PET may have potential to distinguish hypometabolism caused by neuronal loss from that caused by other factors (Shiga et al., 2006). Beyond PET as a way to look at metabolism, neurosurgeons are now exploring continuous ICU monitoring of cerebral metabolism using cerebral microdialysis. Presently, microdialysis is established as a neurochemical research tool in some neurointensive care units — particularly in combination with other monitoring methods. It is being used to develop knowledge of secondary injury mechanisms following traumatic brain injury (Hillered et al., 2006). In critical care units this technique is combined with oxygen-15 positron emission tomography to validate and refine bedside monitors of cerebrovascular physiology and study the impact of therapeutic interventions (Menon, 2006).

3.5.5  Functional Magnetic Resonance Imaging Functional magnetic resonance imaging (fMRI) uses no ionizing radiation, and there are no other known harmful effects of imaging performed within current standards. fMRI can be repeated safely within individual subjects over time. Moreover, unlike SPECT and PET, fMRI has been demonstrated to have a high degree of consistency in the detected locations of brain activity in individual healthy persons participating in serial scanning sessions and in healthy subject groups studied across different laboratories when the same experimental paradigm was employed (Savoy and Gollub, 2004). The problem with fMRI as a practical application to studying brain trauma in a forensic situation is that the scanning session for a typical fMRI-based study may last 1 to 3 hours. fMRI can be used to detect contrast in blood volume, blood flow, and blood oxygenation within the brain. fMRI has been used to detect the motor deficits that occur following traumatic brain injury. The blood oxygenation level-dependent response in motor areas of patients suffering from moderate motor deficits after traumatic brain injury was detected as they performed unilateral fist-clenching motions. Brain trauma patients demonstrated diminished fMRI signal change in the primary sensorimotor cortex on the side opposite the moving hand in the dorsal premotor cortex, and also bilaterally in the supplementary motor areas. fMRI in this particular study was able to detect individuals who evolved to a poor clinical outcome (Lotze et al., 2006).

3.5.6  Magnetic Resonace Spectroscopy Magnetic resonance spectroscopy (MRS) does not replace clinical magnetic resonance imaging; it complements the information provided by it, and MRS should

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not be performed without concomitant structural imaging studies. In particular, the specificity in brain injury assessment can be enhanced by MRI with T1- and T2weighted imaging as well as diffusion-weighted imaging, FLAIR imaging, and gradient echo imaging (Brandão and Domingues, 2004). If a hospital or clinic has the appropriate magnetic resonance scanning hardware, MRS is generally uncomplicated to perform. The physical principles of collecting the signal are the same, but then the data are processed differently for MRS; instead of images, one gets a plot with peak amplitudes compared with a respective frequency. This enables the scanner to detect metabolites and chemicals associated with neurological dysfunction (Danielsen and Ross, 1999). Currently, the use of MRS following traumatic brain injury is twofold: (1) assessing the injured person’s prognosis and (2) assessing the type of biochemical response to the injury. Proton magnetic resonance spectroscopy has been used to predict the neuropsychological progression (the prognosis) of the patient following a head injury. Proton MRS can show diffuse abnormalities in a head injured person by the second to fifth days after the injury (Sinson et al., 2001). The abnormalities found in brain metabolites related to traumatic brain injury are detected within hours — regardless of the appearance of the central nervous system — on clinical MRI. Proton MRS is capable of recognizing different types of biochemical responses to head injury. Identification of these chemicals can be important because prognosis varies according to the diagnosis (Danielsen and Ross, 1999). The response patterns that can be detected by proton MRS are syndrome of inappropriate antidiuretic hormone secretion (SIADH), hyperosmolar state, diffuse axonal injury (DAI), neuronal damage, and hypoxia; among these conditions, hypoxia has the worst prognosis. Unless hypoxic encephalopathy is suspected (which is rare following traumatic brain injury), the white matter voxel of the MR image is the best first choice for evaluation of the biochemical response to injury. One chemical measured very recently following brain trauma appears capable of predicting the outcome based on mitochondrial dysfunction being a significant contributor to poor recovery following traumatic brain injury. N-acetylaspartate (NAA) is almost exclusively localized in neurons in the adult brain and is present in high concentrations in the central nervous system; it can be measured by proton MRS and has been shown to be a marker of neuronal damage and death. A recent study in London correlated NAA as a marker with survival and a 6-month Glasgow Outcome Score. Of 19 patients studied, 11 died and 8 survived. A linear mixed-model analysis revealed a significant effective outcome of the interaction between time of injury and NAA levels. In those patients who died, extracellular NAA was 34% lower than survivors’. The authors propose extracellular NAA as a potential marker for monitoring interventions aimed at preserving mitochondrial function following traumatic brain injury (Belli et al., 2006). Table 3.6 summarizes the current uses of functional brain imaging following TBI.

3.6 Clinical Laboratory Assessment When a forensic neuropsychiatrist is hired to complete a brain injury examination, the examinee may or may not have sustained a brain injury. It is important to

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Table 3.6 Common Uses of Functional Brain Imaging Image Type

Best for Revealing

SPECT PET

Cerebral blood flow Blood flow (oxygen-15) Metabolism (fluorine-18 FDG) Hypometabolism due to neuronal loss (carbon-11 flumazenil) Contrast in blood volume, blood flow, and blood oxygen Biochemical response to injury by proton MRS

fMRI MRS

d­ istinguish other potential medical causes of brain dysfunction, beyond that of the putative traumatic brain injury. This chapter does not allow an extensive elaboration on all medical and surgical illnesses that can affect brain function, but certain common ones should be kept in mind; these include the motor slowing and mental alterations of thyroid disease, the alterations of peripheral and sensory function associated with diabetes mellitus, the neuropsychiatric manifestations of alcoholism and substance abuse, and other common medical conditions. It is incumbent upon the neuropsychiatric examiner to consider these, and if the patient has comorbid medical illnesses, it is necessary to perform chemical testing for thyroid function, blood sugar, automated clinical chemistries, liver function studies, complete blood count and differential, and urine drug abuse screen. The information obtained in the neuropsychiatric history and neurological examination should guide the forensic examiner as to what chemical tests are appropriate. On the other hand, there is emerging evidence that a direct relationship exists between the outcome of traumatic brain injury and those individuals who possess the e4 form of the apolipoprotein E gene (APOE e4) on chromosome 19. Numerous scientific studies have found that the e4 allele of the apolipoprotein E gene is associated with an unfavorable outcome after head injury. In the last few years, multiple studies have demonstrated further evidence of a relationship between brain injury and this genetic marker. The University of Glasgow Group (Smith et al., 2006) recently studied 239 fatal cases of traumatic brain injury between 1987 and 1999, for which APOE e4 genotypes were determined from archival tissue. For each case, specific pathological features of trauma were recorded by researchers blinded to APOE e4 status. Of the 239 cases examined, 35% were APOE e4 carriers and 65% were noncarriers. Possession of the APOE e4 allele was associated with a greater incidence of moderate or severe contusions to the brain for those carrying the gene vs. noncarriers. Moreover, there was a trend toward a greater incidence of severe ischemic brain damage in e4 allele carriers than in noncarriers. The authors concluded that possession of the APOE e4 allele is associated with a greater incidence of moderate–severe contusional injury and severe ischemic brain damage in fatal cases of TBI. They postulate that this may be relevant to the relatively poor outcome from traumatic brain injury in patients with APOE e4 identified in prior clinical studies. The forensic neuropsychiatrist is probably obligated in most cases of significant brain injury to determine the APOE e4 status of the examinee. The plaintiff lawyer

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will be interested in knowing whether his or her client possesses the e4 allele, as there is now evidence that this may predict future development of dementia following brain trauma. The defense lawyer should be pleased to discover, in those cases where the examinee is not an e4 carrier, that this outcome is not likely. The University of Glasgow Group has determined further that existing evidence suggests that some patients who sustain a head injury suffer cognitive decline many years later, and that head injured persons in possession of the APOE e4 alleles are at increased risk for Alzheimer’s disease. A second study was conducted by the Glasgow Group in a cohort of 396 subjects. The University of Glasgow Database of Head Injured Patients was used. The initial assessments were performed between 1968 and 1985, and outcome data 6 months later were available. Their age at time of injury ranged from 2 to 70 years. They were able to detect additional evidence that a late decline in cognition may occur after head injury. They speculated that the follow-up interval of 15 to 25 years was too short for them to detect Alzheimer’s disease in the group, as the mean attained age was only 42.1 years at the time of study. The importance of this study is that it does document that twice as many patients had deteriorated in cognitive function as had improved between 6 months after their injury and the late assessment (Millar et al., 2003). A recent finished study over a longer term concluded that dementia and subclinical dementia were significantly more common with the presence of APOE e4 following traumatic brain injury. Interestingly, this study was able to confirm that Axis I and Axis II psychiatric disorders were not more prevalent in this brain injured subgroup (Koponen et al., 2004). A second finished study documented that if brain injury occurs late in life, the risk of dementia is particularly high in elderly patients who have traumatic brain injury as a result of falls; it is highest in those subjects who carry the APOE e4 allele (Luukinen et al., 2005). Other recent data indicate that APOE e4 may have a direct effect on memory performance following traumatic brain injury. A total of 110 patients in the Defense and Veterans Head Injury Program were studied. Memory performance was worse in those who had an APOE e4 allele than in those who did not. The genotype groups did not differ on demographic or injury variables or on measures of executive function. The authors concluded that their data supported a specific role for the APOE e4 protein and memory outcome following traumatic brain injury (Crawford et al., 2002). More than 200 research articles in the last 10 years provide evidence that APOE e4 is a negative risk factor for individuals who suffer traumatic brain injury, and probably predicts an increased incidence of dementia for those individuals over time. Thus, it is probably wise to sample persons for the APOE e4 genotype following documented tissue brain trauma.

3.7 Standardized Neurocognitive Assessment Others in this text have discussed adequately the role of neuropsychological assessment in the evaluation of traumatic brain injury. From a neuropsychiatric standpoint, no quality neuropsychiatric assessment of a forensic examinee should be undertaken without a concomitant neuropsychological assessment (Granacher, 2003). Since most neuropsychiatrists are not also neuropsychologists, it is suggested that neuropsychiatrists develop a relationship with neuropsychologists, in order that the

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n­ europsychologist can provide a consultative neuropsychological assessment of the examinee. It is standard practice among neuropsychiatrists to use neuropsychological assessment as a laboratory database in the same manner as a magnetic resonance or positron omission tomographic examination of the examinee or an APOE e4 laboratory assessment. Within the standard practice of medicine, practitioners use laboratory measures wherein a person is examined under controlled laboratory conditions using standardized methods of examination and standardized reporting methods. The neuropsychologist functions in the same manner as the neuropsychiatrist, as does the pathologist or radiologist. The neuropsychiatrist performing a forensic assessment of traumatic brain injury will have to defer the neuropsychological analysis to the neuropsychologist. However, a word of caution. One third or more of neuropsychologists in the U.S. perform no cognitive-screening measures, or perform inadequate cognitive screening measures, at the time of neuropsychological assessment (Green and Sweet, 2006). The neuropsychiatrist must establish clear dialogue between himself or herself and the neuropsychologist. Not to consider malingering during a forensic neuropsychiatric examination is substandard medical practice (Gutheil and Simon, 2004). A neuropsychiatrist should not accept a neuropsychological evaluation that does not provide a thorough evaluation of poor cognitive effort, random responses, provision of false answers, or malingering.

3.8 Record Review A forensic neuropsychiatric examination is never complete without review of pertinent medical and possibly legal records. It has been noted previously that for a forensic examination, the focus is entirely different from a clinical examination. Forensic neuropsychiatric analysis lends itself, following brain trauma, primarily to determining causation and to the delineation of damages, if they have occurred, in the putative brain injured person. The four most important records to review regarding causation are (1) the police record, (2) the emergency medical services record, (3) emergency department records, and (4) the hospital record. The police record forms the basis for the initial gathering of factual information regarding the nature of the accident. For instance, from a forensic standpoint, if the police record states that the examinee gave an oral report at the scene to the police officer while the accident was investigated, one can state within reasonable medical probability that the likelihood of any significant brain injury is nil. The emergency services record is the first place the neuropsychiatric examiner is likely to find evidence of a Glasgow Coma Scale (GCS). This will be the initial best evidence of the examinee’s eye, motor, and verbal abilities (EMV) at the scene of the accident. The emergency department records will also probably include a GCS score; this enables the neuropsychiatric examiner to determine whether the condition has improved or worsened. For instance, a GCS score of 13 at the scene may have elevated to a GCS score of 15 by the time the examinee was received in the emergency department. On the other hand, an examinee could have had a GCS score of 12 at the scene that deteriorates to a GCS score of 3 in the emergency department because an evolving epidural bleed required intubation and paralyzation of the examinee in transit. The

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Table 3.7 Important Records to Review Police reports Photographs of the scene Ambulance report Emergency report Hospital record

Rehabilitation record Outpatient record School record Preinjury medical record

hospital record will be the best evidence of the full delineation of injuries sustained by the examinee, if any — in particular, the need for neurointensive care, ventilator support, tracheostomy, surgery, intraventricular pressure monitoring, and other important treatments. Table 3.7 lists the important records to review in a forensic neuropsychiatric examination. Other than the four previously discussed records, additional records are useful to help determine outcome and should be correlated with the neuropsychiatric examination in an effort to determine potential damages. A neuropsychiatrist does not review photographs of the accident scene for accident reconstruction; their importance is to determine whether the accident was one of great force to the body of the examinee or merely a “fender bender.” The rehabilitation record enables the neuropsychiatrist to determine the examinee’s level of function at the time of discharge from the rehabilitation unit. It is important to note whether the examinee could complete activities of daily living by the time of discharge, and also, this is the most likely place the forensic neuropsychiatrist will find an initial neuropsychological assessment. Outpatient records are important to help with documentation of posttraumatic seizures, headaches, hypersomnolence, persistent focal neurological dysfunction, and behavioral dysfunction. If the examinee is a child, school records have great importance. School is the work of the child, and, therefore, persistent neuropsychiatric impairments must be considered as to their impact upon the child’s future school performance. For the adult, school records provide important sources of preinjury baseline determination. ACT and SAT scores can be used by the neuropsychologist to extrapolate probable preinjury cognitive capacity in a more precise manner than estimating it after the fact. The review of preinjury medical records enables the forensic neuropsychiatrist to determine whether aggravating factors are present that contribute currently to the apparent neurocognitive dysfunction, or have independently caused brain dysfunction that is now being claimed as a product of a minor accident.

3.9 Neurobehavioral Analysis Since the time of Hippocrates, the physician has relied upon the taking of a history, the performance of a face-to-face examination, the development of a differential diagnosis, and the confirmation of the diagnosis by laboratory tests. The overriding analysis is based upon clinical correlation. All of the areas of neuropsychiatric assessment must be integrated into a whole and correlated clinically with the presentation and complaints of the examinee.

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As with any journey, there is a starting point. The neuropsychiatric examiner should review carefully the evidence of initial injury. Does the police or accident reconstruction evidence justify considering that the examinee sustained a traumatic brain injury? Is the initial emergency medical services report consistent with trauma that would be expected to produce a brain injury in a reasonable person? Evidence will be gathered during the taking of the neuropsychiatric history. Does the examinee present plausible symptoms consistent with the evidence in the police record and emergency services report? In examining the forensic neuropsychiatric history, are there significant indicia of cognitive and behavioral disturbances? On the other hand, is there evidence that the history is embellished or changed with each succeeding examination? The faceto-face neuropsychiatric mental status examination will allow the neuropsychiatrist to determine whether there is obvious cognitive and behavioral dysfunction that can be elicited by visual and auditory observation. Do the findings in the history and the neuropsychiatric mental status examination correlate with the neurological examination? Is there evidence of focal neurological signs? If there is no evidence of focal neurological signs, do the elements of the history and mental status examination suggest a mild head injury that would not be expected to produce a focal neurological deficit? Structural and functional brain imaging should be reviewed. The imaging in the injury records should be reviewed, and then the examiner should compare his or her imaging with earlier imaging studies. Has there been an improvement in imaging findings in the interval between the original accident and the current examination? If there is no evidence of lesions on structural imaging, does functional imaging provide evidence that can be correlated with the neuropsychological outcome? Does the imaging obtained by the neuropsychiatric examiner correlate with imaging obtained at the time of the injury? Does laboratory testing add to the database? APOE e4 presence on one or both alleles of chromosome 19 may contribute to poor outcome and predict further neurodegeneration as the examinee ages. Are other laboratory findings present that correlate with the entirety of the examination? The standardized neurocognitive assessment provided by the neuropsychologist should be examined carefully and integrated into the data obtained by the neuropsychiatrist. Is the neuropsychological data consistent with the injury record, hospital record, and apparent injuries or noninjuries of the examinee? Did the neuropsychologist provide adequate cognitive and behavioral screening for effort and malingering? Care must be taken not to overreach using the neuropsychological data. On the other hand, the neuropsychiatrist must be aware that important injury patterns can be present on imaging that do not translate to neuropsychological findings, and vice versa. For instance, an infraorbital frontal lobe brain injury detected on MRI may not translate to a deficit on the Wisconsin Card Sorting Test. The Wisconsin Card Sorting Test is sensitive to lateral-frontal injury, not infraorbital injury. An infraorbital injury would be expected to produce primarily behavioral deterioration rather than cognitive deterioration. Correlations must be strong between the neuropsychiatric examination and the neuropsychological examination in order to provide useful information to the trier of fact. Does analysis of the records contribute to the understanding of the injury and outcome of the examinee?

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3.10 Neuropsychiatric Diagnoses There are no specific forensic neuropsychiatric diagnoses in the nosology of medicine. Diagnostic terminology should follow either Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) or International Classification of Disease, 9th revision (ICD-9) standards if the examination is performed within the U.S. Neuropsychiatrists will probably defer to DSM-IV standards. Unfortunately, DSM-IV terminology and diagnostic criteria are woefully inadequate for neuropsychiatry; this is the best we have at the present. As long as the examiner is consistent and understands and can explain the limitations of DSM-IV to a trier of fact, it is acceptable to use these criteria in a forensic report. As an example, suppose the forensic neuropsychiatric examination determines that the examinee has an infraorbital frontal lobe brain trauma producing a dysexecutive syndrome. This is almost impossible to characterize in DSM-IV terminology. The main diagnoses relevant to TBI in the DSM-IV classification system, available to the forensic neuropsychiatrist, are (1) dementia due to head trauma (294.1), (2) amnestic disorder due to head trauma (294.0), (3) cognitive disorder not otherwise specified (294.9), (4) personality change due to head trauma (310.1), (5) mental disorder not otherwise specified due to head trauma (293.9), (6) depressive disorder not otherwise specified (311), (7) anxiety disorder due to head trauma (293.89), (8) mood disorder due to head trauma with depressive features (293.83), and (9) delirium due to head trauma (293.0). Clearly, the psychiatric profession is behind clinical science in its ability to properly classify the myriad neuropsychiatric conditions seen following brain trauma (American Psychiatric Association, 1994).

3.11 Forensic Neuropsychiatric Conclusions The neuropsychiatric examiner should compose all of the elements listed in the initial part of this chapter as part of the forensic neuropsychiatric assessment of traumatic brain injury. After a full neurobehavioral analysis of the data, conclusions understandable within the legal system should be provided. It is important when writing a neuropsychiatric report to remain as jargon-free as possible. Conclusions should be stated within reasonable medical probability and provide clear information to the reader of the report or to the trier of fact. It is probably best to ask the person who hired the neuropsychiatrist how he or she wishes the conclusions to be styled; for instance, the lawyer, or other entity hiring the neuropsychiatrist, may wish to have only a single conclusion stating that the accident in question produced the brain injury in the plaintiff or did not produce a brain injury in the plaintiff. Some lawyers may wish that an impairment rating be developed; if so, it is probably best to state this within the criteria of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (Cocchiarella and Andersson, 2000).

References American Academy of Psychiatry and the Law. (2004). Ethical guidelines for the practice of forensic psychiatry. In Membership Directory. American Academy of Psychiatry and the Law, Washington, DC, p. x (adopted May 1987, last revised 1995).

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American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders, 4th ed. American Psychiatric Association, Washington, DC. Barton, W.A. (1990). Recovering from Psychological Injuries, 2nd ed. ATLA Press, Washington, DC. Belli, A., Sen, J., Petzold, A., Russo, S., Kitchen, N., Smith, M., Tavazzi, B., Vagnozzi, R., Signoretti, S., Amorini, A.M., Bellia, F., and Lazzarino, G. (2006). Extracellular Nacetylaspartate depletion in traumatic brain injury. Journal of Neurochemistry, 96, 861–869. Bowers, D., Bauer R.N., and Heilman K.M. (1993). The nonverbal affect lexicon: theoretical perspectives from neuropsychological studies of affect perception. Neuropsychology, 7, 433. Brandão, L.A. and Domingues, R.C. (2004). MR Spectroscopy of the Brain. Lippincott Williams & Wilkins, Philadelphia. Cocchiarella, L. and Andersson, G.B.J. (2000). Guides to the Evaluation of Permanent Impairment, 5th ed. AMA Press, Chicago. Crawford, F.C., Vanderploeg, R.D., Freeman, M.J., Singh, S., Waisman, M., Michaels, L., Abdullah, L., Warden, D., Lipsky, R., Salazar, A., and Mullan, M.J. (2002). APOE genotype influences acquisition and recall following traumatic brain injury. Neurology, 58, 1115–1118. Danielsen, E.R. and Ross, B. (1999). Magnetic Resonance Spectroscopy Diagnosis of Neurological Diseases. Marcel Dekker, New York, pp. 5–22. Dougherty, D.D., Rauch, S.L., and Fischman, A.J. (2004). Positron emission tomography and single-photon emission computed tomography. In Essentials of Neuroimaging for Clinical Practice, Dougherty, D.D., Rauch, S.L., and Rosenbaum, J.F., Eds. American Psychiatric Press, Washington, DC, pp. 75–92. Gowda, N.K., Agrawal, D., Bal, C., Chandrashekar, N., Tripati, M., Bandopadhyaya, G.P., Malhotra, A., and Mahapatra, A.K. (2006). Technetium Tc-99m ethyl cysteinate dimer brain single-photon emission CT in mild traumatic brain injury: a prospective study. American Journal of Neuroradiology, 27, 447–451. Granacher, R.P. (2003). Traumatic Brain Injury: Methods for Clinical and Forensic Neuropsychiatric Assessment. CRC Press, Boca Raton, FL. Green, P. and Sweet, J. (2006). Personal communication, February 21. American Neuropsychiatric Association, San Diego. Gutheil, T.G. and Simon, R.I. (2002). Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. American Psychiatric Publishing, Washington, DC, p. 7. Haerer, A.F. (1992). DeJong’s The Neurological Examination, 5th ed. J.B. Lippincott Company, Philadelphia. Hillered, L., Persson, L., Nilsson, P., Ronne-Engstrom, E., and Enblad, P. (2006). Continuous monitoring of cerebral metabolism in traumatic brain injury: a focus on cerebral microdialysis. Current Opinions in Critical Care, 12, 112–118. Inglese, M., Makani, S., Johnson, G., Cohen, B.A., Silver, J.A., Gonen, O., and Grossman, R.I. (2005). Diffuse axonal injury: a diffusion tensor imaging study. Journal of Neurosurgery, 103, 298–303. Kaufman, D.M. (1995). Clinical Neurology for Psychiatrists, 4th ed. W.B. Saunders Company, Philadelphia. Kestenbaum, C.J. (2004). The clinical interview of the child. In Textbook of Child and Adolescent Psychiatry, 3rd ed., Wiener, J.M. and Dulcan, M.K., Eds. American Psychiatric Press, Washington, DC, pp. 103–112. Klingberg, T., Hedehus, M., Temple, E., et al. (2000). Microstructure of temporoparietal white matter as a basis for reading ability: evidence from diffusion tensor magnetic resonance imaging. Neuron, 25, 493–500. Koponen, S., Taiminen, T., Karisto, V., Portin, R., Isoniemi, H., Hinkka, S., and Tenovuo, O. (2004). APOE epsilon 4 predicts dementia but not other psychiatric disorders after traumatic brain injury. Neurology, 63, 749–750.

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Larsen, P.D. (2006). Clinical neuropsychiatric assessment of children and adolescents. In Pediatric Neuropsychiatry, Coffey, C.E. and Brumback, R.A., Eds. Lippincott Williams & Wilkins, Philadelphia, pp. 49–74. Lezak, M.D. (2004). Neuropsychological Assessment, 4th ed. Oxford University Press, New York. Lotze, M., Grodd, W., Rodden, F.A., Gut, E., Schonle, P.W., Kardatzki, B., and Cohen, L.G. (2006). Neuroimaging patterns associated with motor control in traumatic brain injury. Neurorehabilitation and Neural Repair, 20, 14–23. Luukinen, H., Viramo, P., Herala, M., Kervinen, K., Kesaniemi, Y.A., Savola, O., Winquvist, S., Jokelainen, J., and Hillbom, M. (2005). Fall-related brain injuries and the risk of dementia in elderly people: a population based study. European Journal of Neurology, 12, 86–92. McCullagh, S., Ourcherlony, D., Protzner, A., Blair, N., and Feinstein, A. (2001). Prediction of neuropsychiatric outcome following mild trauma brain injury: an examination of the Glasgow Coma Scale. Brain Injury, 15, 489–497. Menkes, J.H. (1995). Textbook of Child Neurology, 5th ed. Williams & Wilkins, Baltimore. Menon, D.K. (2006). Brain ischaemia after traumatic brain injury: lessons from 15 O2 positron emission tomography. Current Opinions in Critical Care, 12, 85–89. Mesulam, M.M. (2000). Principles of Behavioral and Cognitive Neurology, 2nd ed. Oxford University Press, New York, p. 121. Millar, K., Nicholl, J.A., Thornhill, S., Murray, G.D., and Teasdale, G.M. (2003). Long-term neuropsychological outcome after head injury: relation to APOE genotype. Journal of Neurology, Neurosurgery and Psychiatry, 74, 1047–1052. Ozbudak, D.S., Gorgulu, G., and Koseoglu, F. (2006). Comparison of rehabilitation outcome in patients with aphasic and nonaphasic traumatic brain injury. Journal of Rehabilitation Medicine, 38, 68–71. Pavel, D., Jobe, T., Devore-Best, S., Davis, G., Epstein, P., Sinha, S., Kohn, R., Craita, I., Liu, P., and Chang, Y. (2006). Viewing the functional consequences of traumatic brain injury by using brain SPECT. Brain and Cognition, 60, 211–213. Savoy, R.L. and Gollub, R.L. (2004). Functional magnetic resonance imaging. In Essentials of Neuroimaging for Clinical Practice, Dougherty, D.D., Rauch, S.L., and Rosenbaum, J.F., Eds. American Psychiatric Press, Washington, DC, pp. 93–104. Shiga, T., Ikoma, K., Katoh, C., Isoyama, H., Matsuyama, T., Kuge, Y., Kageyama, H., Kohno, T., Terae, S., and Tamaki, N. (2006). Loss of neuronal integrity: a cause of hypometabolism in patients with traumatic brain injury without MRI abnormality in the chronic stage. European Journal of Nuclear Medicine and Molecular Imaging, March 25 (e-publication ahead of print). Sinson, G., Bagley, L.J., Cecil, K.M., Torchia, M., McGowan, J.C., Len Kinski, R.E., ­McIntosh, T.K., and Grossman, K.I. (2001). Magnetization transfer imaging and proton MR spectroscopy in the evaluation of axonal injury: correlation with clinical outcome after traumatic brain injury. American Journal of Neuroradiology, 22, 143–151. Smith, C., Graham, D.I., Murray, L.S., Stewart, J., and Nicholl, J.A. (2006). Association of APOE e4 and cerebrovascular pathology in traumatic brain injury. Journal of Neurology, Neurosurgery and Psychiatry, 77, 363–366. Strub, R.L. and Black, F.W. (2000). The Mental Status Examination in Neurology, 4th ed. F.A. Davis Company, Philadelphia. Trzepacz, P.T. and Baker, R.W. (1993). The Psychiatric Mental Status Examination. Oxford University Press, New York. Wallace, J.J., Sheibel, R.S., and High, W.M. (2000). Predictive validity of the Neurobehavioral Cognitive Status Examination (NCSE) in a postacute rehabilitation setting. Brain Injury, 14, 63–69. Weinstock, R. and Garrick, T. (1994). The forensic psychiatrist as consultant. In Principles and Practice of Forensic Psychiatry, Rosner, R., Ed. Chapman & Hall, New York, 1990, p. 47.

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The Forensic Neuropsychological Evaluation and Report Henry V. Soper and Arthur MacNeill Horton, Jr.

Contents 4.1 Introduction.................................................................................................... 67 4.2 Overview of Neuropsychological Assessment............................................... 68 4.3 Brief History of Neuropsychological Assessment......................................... 69 4.4 Selective Review of Brain Behavior Relationships........................................ 70 4.5 The Daubert Case and Neuropsychological Evaluations.............................. 71 4.6 The Referral Question.................................................................................... 72 4.7 Background Information................................................................................ 72 4.8 Observations................................................................................................... 73 4.9 Test Selection................................................................................................. 74 4.10 Specific Cognitive Functions to Be Assessed................................................ 79 4.11 Assessment of Examinee Effort during Testing............................................ 81 4.12 Test Results, Analysis, and Report................................................................. 82 4.13 Summary........................................................................................................ 87 4.14 Diagnostic Impressions.................................................................................. 88 References................................................................................................................. 89

4.1 Introduction In the last half-century, interest in brain behavioral relationships or neuropsychology has increased at a tremendous rate. There are multiple examples of successful applications of neuropsychological assessment methods (Horton and Wedding, 1997; Reitan and Wolfson, 1992). Meier (1974) has defined neuropsychology as “the scientific study of brain-behavioral relationship.” Many years after it was proposed, the definition is still accurate, relevant, and appropriate. The organic nature of neuropsychological variables has been demonstrated clearly through the work of eminent neuropsychologists such as Ralph M. Reitan, Arthur L. Benton, and A.R. Luria over several decades. Neuropsychological evaluations are performed by clinical neuropsychologists. A neuropsychologist is a licensed clinical psychologist with specialized training in brain behavior relationships and neuropsychological assessment. Although not a requirement to practice neuropsychology within most states, board certification in neuropsychology (through either the American Board of ­Clinical ­Neuropsychology or the American Board of Professional Neurosychology) is considered the most reliable means of demonstrating high competency within this specialty. 67

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A fast-growing subspecialty of neuropsychology is forensic neuropsychology, where the results of neuropsychological assessment are used to address legal questions within the courtroom or other such legal arena (Horton and Hartlage, 2003). However, when clinical neuropsychologists enter the forensic arena there are several challenges to overcome. There are differences between traditional clinical neuropsychological assessments and forensic neuropsychological evaluations. These include the need to relate neuropsychological findings to the legal issues of the forensic setting, the greater need for symptom validity and effort testing, and communicating neuropsychological implications for legal issues in ways that judges and juries (who may not have scientific backgrounds) can comprehend so that they can make legal decisions (Heilbrun et al., 2003). Simply put, in the forensic setting, the neuropsychological report must deal with the adversarial nature of legal proceedings and its implications. Courtroom procedures evolved from armed combat in the middle ages. In the legal setting, the issues to be decided are to be fought over until there is a winner, and lawyers will treat the forensic neuropsychology report as a weapon (Zillmer and Green, 2006). This is different from the clinical setting, in which a clinical neuropsychology report is treated with great respect by colleagues. Nonetheless, the forensic neuropsychological report must address the implications of the neuropsychological findings for the legal questions at hand in a direct matter, yet not attempt to answer the ultimate legal question, since that is the responsibility of the judge and jury (Blau, 1998). The greater need for symptom validity and effort testing arises from the fact that some would have much to gain if the legal issues were decided in their favor, and that potential for gain, monetary and otherwise, may influence their performance on the neuropsychological test (Iverson, 2003). That is not to say that all people seen in the forensic setting will give poor effort, but the likelihood is that a greater number will than will in clinical settings (Mittenberg et al., 2002). Therefore, the forensic neuropsychologist must carefully consider the possibility of the patient giving poor effort and include symptom validity testing as an essential portion of the forensic neuropsychological evaluation (Reynolds, 1998). Communication of neuropsychological findings to a nonscientific audience such as a judge and jury requires great care in the use of language. As noted by Greiffenstein and Cohen (2005), the language in forensic neuropsychological reports should be understandable and technical terms should be avoided or explained in an easy-tounderstand manner. The purpose of the forensic neuropsychology report is to educate the readers (i.e., lawyers, judges, and jury members) about the implications of the neuropsychological assessment findings for the legal questions at hand. The forensic neuropsychology report should be so clear that the least informed jury member can understand the conceptual reasoning, and it should provide vivid examples of the legal implications of the forensic neuropsychological evaluation (Heilbrun et al., 2003).

4.2 Overview of Neuropsychological Assessment Brief discussions of the concepts of brain damage and cerebral dysfunction are presented here to clarify the neuropsychological concepts to be applied. In the context of this chapter, brain damage implies clear and substantial structural injury

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to the brain (Horton and Wedding, 1984). Although brain tumors or strokes can be visualized easily on neuroimaging, other neuropathological conditions, such as the sequelae of traumatic brain injury (TBI) and neurotoxic conditions, may produce clear neurocognitive, sensory-perceptual, and motoric deficits without demonstrating clear structural brain changes through the existent imaging techniques (Horton and Wedding, 1984). In situations of this sort, where behavioral changes are clearly documented but structural lesions in the brain cannot be visualized, the term cerebral dysfunction is often used (Horton, 1994). The term organicity is frequently misunderstood. The classic definition by Davison (1974) is as follows: The concept includes the assumption that any and all kinds of brain damage lead to similar behavioral effects and that behavioral differences among the brain-damaged are due primarily to severity of damage and premorbid personality characteristics. (p. 14)

4.3 Brief History of Neuropsychological Assessment In April 1861, Paul Broca presented the brain of a patient at the Paris Anthropological Society Meeting. This patient had been unable to speak when he had been alive. Broca, a physician, had intensively studied the patient prior to his death. He demonstrated that the patient’s language difficulty had been independent of memory difficulties or motoric problems. After the patient died, his brain became available for inspection. The patient, it turned out, had a lesion in the posterior third portion of the inferior frontal convulsion of the left hemisphere. Therefore, Broca concluded the language difficulty was related to the brain lesion in the posterior third portion of the inferior frontal convulsion. After other examples, he also concluded that the left hemisphere was critical for this dysfunction. The important finding from this case study was that a specific brain area was essential for normal expressive speech. That particular brain area is now known as Broca’s area (Horton and Wedding, 1984). In 1874, Carl Wernicke presented the brain of a patient who, when he was alive, had a severe speech comprehension deficit. After the patient died his brain became available for study. Wernicke reported that a lesion was found in the posterior third portion of the superior temporal lobe of the left hemisphere of the patient’s brain. Today this area is known as Wernicke’s area (Horton and Wedding, 1984). These discoveries are the basis for the notion that specific brain areas subserve specific behavioral functions. These discoveries helped establish the localizationist school of brain behavioral relationships. Other brain scientists averred that all brain tissue is of equal relevance for subserving behavioral functions. This “equal potentiality” school also had empirical support. Kurt Goldstein found that the degree of loss of behavioral functions was related to the amount of brain tissue impaired. Later, he found similar results in his work with brain injured veterans of World War I. Goldstein’s research suggested that the major difficulty with respect to brain injured persons was concrete thinking, and the brain injured patient had “loss of the abstract attitude” (Horton and Wedding, 1984). Now it is generally accepted that both the localization and equal potential conceptualizations of brain behavior relationships explain some but not all of the full range of human neuropsychological abilities.

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An integrative solution to the human potentiality/localization debates was proposed by Thomas Hughlings Jackson, an English physician (Luria, 1966). Jackson postulated the notion that human behavioral functions were represented in multiple levels in the brain. In other words, a vertical organization of human brain functions exists at a number of levels. Luria (1966) similarly described the brain as composed of distinct functional blocks with each section serving different functions. He saw higher mental processes as involving multiple brain areas integrating in multiple points in time. As was noted by Horton and Wedding (1984): Essentially, Luria thought that every complex form of behavior depended on the joint operations of several faculties located in different zones of the brain. Disturbance of any one of the number of faculties located in different areas of the brain will change behavior in a different way. But in another way, this means no single behavior is localized in a specific brain area, and that each behavior is a result of the specific combinations of separate brain areas. Also the damage to a single brain area causes the behavior to be changed but not necessarily lost. (p. 30)

Brain damage is a relatively difficult and complexly abstract concept to understand, and neuropsychological complexities go far beyond the rather simplistic conceptualizations of organicity. Although there are some similarities among brain injured individuals, there is also a tremendous amount of heterogeneity. It might be suggested that current diagnostic frameworks poorly reflect the complexity inherent in human cerebral functioning.

4.4 Selective Review of Brain Behavior Relationships The central nervous system is composed of the brain and the spinal cord. The spinal cord both transmits sensory impulses to the brain and sends motor impulses from the brain to the muscles. Various segments (i.e., cervical, thoracic, lumbar, and sacral) of the spinal cord refer to specific groups of nerves. Injuries to various levels of the spinal cord impair motoric and sensory functioning in specific locations. Understanding the extent of the sensory/motor organization of the human brain facilitates understanding of the structure and functioning of the central nervous system. The human brain is divided into two cerebral hemispheres (Luria, 1966). Each cerebral hemisphere is similar in appearance to the other, but not in structure and function. The term cerebral asymmetry refers to these differences. Human beings are dominant on one side of the body, with one cerebral hemisphere larger than the other. In most right-handed individuals, the left cerebral hemisphere is slightly larger than the right cerebral hemisphere. It is often suggested that the reason the left cerebral hemisphere is slightly larger is the fact that the left cerebral hemisphere subserves language functions in the human (Horton and Wedding, 1984). In addition to cerebral asymmetry, it is also important for the forensic neuropsychologist to know the concept of contralateral control, which refers to the cross-wired nervous system organization of the central nervous system at the level of the cerebral hemispheres. An oversimplified description is that the left cerebral hemisphere controls motor and sensory functions on the right side of the body, and the right cerebral hemisphere

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controls motor and sensory functions on the left side of the body. It might be noted that all functions of the sensory nature are not 100% lateralized. For example, visual functions do appear to be close to 100% lateralized, but auditory sensation is 80% under contralateral control and 20% under ipsolateral, or same side, control. Similarly, tactile functions are generally thought to be 90% under contralateral control and 10% under ipsolateral control (Horton and Wedding, 1984). Prior to going into the report in depth, two issues will be discussed. The first, the Daubert principle, has now been with us for years and has raised a great deal of concern. The second concerns an area that perhaps has not been given the notice it deserves. This is the importance of attention to the referral question, and agreement between the forensic neuropsychologist and the referral agency about what the evaluation is all about.

4.5 The Daubert Case and Neuropsychological Evaluations On June 28, 1993, the U.S. Supreme Court rendered the Daubert (1993) opinion, which instructed federal judges on deciding if a type of expert testimony could be allowed into their courtrooms. The intent was to eliminate expert testimony that was not based on accepted scientific findings. This was not a new concern. Previously, a 1923 court ruling known as Frye stated that the methods used by the expert must be those generally accepted in that expert’s community. The intent of the Daubert opinion was to clarify further for judges what expert testimony should be permitted and what should be excluded. The Supreme Court in Daubert indicated four criteria for determining if the science in expert testimony was admissible:

1. Is the evidence based on a testable theory or technique? 2. Has the theory or technique been peer reviewed? 3. In the case of a particular technique, does it have a known error rate and standards controlling the technique’s operation? 4. Is the underlying science generally accepted?

After well over a decade, the Daubert opinion is still being clarified among judges, lawyers, and legal scholars. The Supreme Court has warned against using the list as “a definitive checklist or test,” but the results have been variable. Some litigants have been able to use Daubert to exclude the same harmful expert testimony that others considered acceptable based on acceptable scientific findings. Judges themselves have not been consistent in applying Daubert criteria. Extended discussion of this legally important issue goes beyond the scope of this chapter, but there is an excellent discussion put forth by the Project on Scientific Knowledge and Public Policy (2003). However, in the forensic neuropsychology arena, unless the case to be decided deals with huge sums of money, it is unlikely that a Daubert challenge would be made. Also, if the neuropsychological tests that form the basis of an opinion do appear to meet the Daubert criteria, then a Daubert challenge is unlikely. This opinion is shared by Greiffenstein and Cohen (2005). A more comprehensive

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discussion of these legal issues as they apply to the forensic examiner and expert witness is provided in Chapters 6 and 7.

4.6 The Referral Question There are many types of forensic evaluations, even just with regard to TBI, and hence many types of referral questions. Although few attorneys would admit to it, some referrals are clear and obvious fishing expeditions, looking for an opinion that might be useful. On the other hand, cases from an insurance company usually come with very specific referral questions. In the situation where the forensic neuropsychologist is working with an attorney, an area of potential frustration centers on a referral question that is ambiguous. Under such circumstances, even an experienced forensic neuropsychologist can misunderstand the objectives of the attorney. The neuropsychologist completes his work only to find out the lawyer had totally different expectations from the forensic neuropsychology report. Ideally, each should inform the other concerning the relevant aspects of their respective fields. However, in some cases, initially neither realizes the sources of the confusion. For example, in one case, an attorney was setting up for a defense based, in part, on a personality disorder the client supposedly had. Neuropsychological and psychological testing, however, revealed not a personality disorder, but an autism spectrum disorder. After the forensic neuropsychologist gave a careful explanation of the diagnosis of this particular client, the attorney was able to construct a much more appropriate and, assumedly, successful defense. Now let us move on to the various sections of the report and some thoughts and suggestions about each. There is, of course, no fixed set of sections for the report, but the outline here will cover most of the material essential in uncovering the behavioral manifestations of a TBI.

4.7 Background Information In theory, everything possibly relevant should be included in the background section, but this is not always feasible. Long and Collins (1997) recommend holding a structured history-taking interview prior to the formal testing. They propose a model outline for such an interview, but it might be advisable, when possible, to have the person fill out a structured history form so the patient’s actual responses would be clear. This can also save substantial time. An excellent structured history form is provided by Strauss et al. (2006). Doerr (1991) also discusses the clinical interview. Everything relevant to the case should be requested from the attorney, but often not all records desired will be available. However, if the school records, for example, are potentially of great value, then great efforts should be made to obtain them. Sometimes, on the other hand, a valuable piece of information is simply not forthcoming. Certainly all medical, psychiatric, psychological, and neuropsychological records should be reviewed, if available, but it is also important to know about academic, social, and occupational functioning prior to the incident or issue of concern. Reviewing an extensive pile of documents can be daunting, but essential to a helpful forensic neuropsychological report. The review of all records can really help in

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getting the big picture. In the forensic neuropsychological report, however, only the most relevant material from each source, or the fact that the records are missing, would be included. Evaluating the credibility of sources is appropriate, and can be just as important as documenting what is said. Where emergency situations were involved, as frequently happens in the TBI situation, often information will be missing, especially information about neurocognitive functioning. The emergency room attendants and paramedics are first interested in keeping people alive, and then in stopping bleeding and fixing bones. Assessing gross cognitive functioning and paperwork are lower down in their priorities. This is especially true where several people are in need of emergency treatment at the same time. Some opposing attorneys take the stance that if cognitive impairment or concussion was not mentioned, it did not happen. Indeed, frequently people are discharged from hospitals with severe but undetected neurocognitive deficits, even after a loss of consciousness (Carson and Bee, 2003).

4.8 Observations In addition to the standard information about maturity, dress, grooming, and personal hygiene, it is important to note personal and idiosyncratic motor behaviors of interest, such as continuous writhing of the hands. One should also comment on individual behaviors of particular interest, such as using a cane to ambulate in the neuropsychologist’s office, but after leaving the office walking in the parking lot without a cane. This might also include having a loud and inappropriate argument with a building security guard. The presence or absence of psychotic thought processes or suicidal ideation, of course, should always be assessed and mentioned if present. The person’s tolerance for frustration, cooperation level, and ability to interact socially appropriately with the examiner are important. A cogent summary of incidental events during the neuropsychological evaluation tells the story of who the client is and sets a context for the actual presentation of results of the neuropsychological evaluation, which follows. The observations paint a picture of what the person was like at the time of the neuropsychological evaluation. It is important to comment on his or her eye contact, motor behavior, social adroitness, ability to read and respond appropriately to the body language of others, and language pragmatics and vocal prosody. It is also important to address demographic factors that could have an impact on the neuropsychological evaluation, such as the specific culture of the proband. If there are such cultural factors, it would be insufficient to say, for example, the person is Hispanic/Latino and not address other considerations regarding the person’s cultural identification, primary language, and acculturation level to the mores of the United States. Relevant detailed consideration of how the specific culture may impact the neuropsychological assessment and the legal question at hand is needed. For example, the person’s age and role in the family can interact with his or her specific culture to affect the neuropsychological testing results. The interaction of the culture of the person evaluated and the culture of the evaluator can have an influence on the neuropsychological test data, and these possible influences should be considered and addressed. There are certain cultures, for example, in which males are exceedingly uncomfortable if they are evaluated by a female professional. There

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are also individuals who, because of their individual histories and cultural or ethnic background, could feel very uncomfortable being evaluated by an evaluator who does not share elements of personal history or cultural or ethnic background, and those feelings should be considered and addressed to prevent interference with the neuropsychological evaluation.

4.9 Test Selection The test selection procedure in forensic neuropsychology should be in many ways similar to that of a clinical neuropsychological evaluation. While there are controversies regarding whether a fixed or flexible neuropsychology test battery should be used, the controversy, in some situations, is more myth than reality. However, there are good arguments for at least including a fixed battery, as outlined below. In addition, most forensic neuropsychologists use a core fixed battery or group of neuropsychological tests that they administer to most patients, but the core battery often is or should be augmented depending on specific clinical or forensic questions, the patient’s physical and mental capabilities or fatigue level, the time available for the evaluation, and the setting and circumstances under which the neuropsychological evaluation is to be conducted (e.g., bedside or prison). Other considerations include specific needs of the assessment situation and the patient’s particular educational, medical, physical, neurological, and social characteristics. The true question is how and with which additional neuropsychological tests should the core neuropsychology battery be augmented? The crucial question with test selection, however, is the degree to which reliance can be placed on the groupings of tests. To place reliance on a battery of neuropsychological tests in a forensic neuropsychology setting, the set of neuropsychological tests should have been considered, as a group, for the question being asked. For example, many single neuropsychological tests can discriminate brain injured groups from normal groups of individuals with about 75% accuracy. Neuropsychological tests are very robust, and in clinical work multiple combinations of neuropsychological tests may be suitable for addressing clinical questions in a satisfactory manner. On the other hand, fixed batteries of neuropsychological tests, considered as a group, can discriminate brain injured from normal groups with about 90% accuracy (Horton, 1997). If a group of neuropsychological tests has not been considered as a group for the specific diagnostic question of brain damage identification, then the established accuracy level would have to be considered to be equal to the best accuracy from among the single neuropsychological tests. If a fixed battery of neuropsychological tests has been proved to be able to achieve a higher degree of accuracy, then more reliance can be placed on the proven results. Also, if a completely flexible neuropsychology battery is used, then there is always the possibility that an unethical forensic neuropsychologist could compose a neuropsychology battery of relatively insensitive neuropsychological tests to limit the possibility of identifying neuropsychological impairment. A fixed forensic neuropsychology battery has a predetermined ability to detect impairment, based on years of brain behavior research findings. The relevant neuropsychological tests to be included in such a battery are known. In essence, nothing unproven can be assumed; based on research, even single neuropsychological tests can be established

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to be quite robust in assessing brain injury in human beings. However, fixed batteries of such tests, with research evaluating them as a whole battery, can do an even better job in assessing such injury. In addition, a standardized battery will allow for the use of multiple levels of inference (Horton and Wedding, 1984; Reitan and Wolfson, 1992), rather than simply rely on a level of performance model. The use of multiple levels of inference provides a modicum of control over false-positive errors in diagnosis. This is not to say that a single neuropsychological test cannot be helpful in screening assessments or that flexible batteries may not at times be appropriate. The most widely researched and used neuropsychological test battery is the Halstead–Reitan Neuropsychological Test Battery (Reitan and Wolfson, 1992). The Halstead–Reitan Neuropsychological Test Battery was based on the research of Ward Halstead, an experimental psychologist who worked at the University of Chicago in the years prior to, during, and following the Second World War (Horton and Wedding, 1984). Halstead attempted to identify “biological intelligence,” or that the unique component of mental ability depended upon intact brain functioning. Ralph M. Reitan was Halstead’s first doctoral student and assisted in the development of a group of psychological tests that were selected to be sensitive to the biological integrity of the human cerebral cortex. Reitan realized the potential value of Halstead’s experimental work for the clinical assessment of brain injured patients. He augmented and modified Halstead’s tests to devise a neuropsychological assessment battery for use with brain injured patients: the Halstead–Reitan Neuropsychological Test Battery (Reitan and Wolfson, 1992). Some of the tests from Halstead’s Neuropsychological Battery include the following: The Category Test is used to assess abstract reasoning and concept formation skills. The Tactual Performance Test (TPT) is a psychomotor problem-solving task that involves tactile form identification, incidental memory, and special location recollection. The Seashore Rhythm Test is a measure of nonverbal auditory perceptual skills. The Speech Sound Perception Test is a verbal measure of auditory perceptual skills and assesses the ability to discriminate speech-related sounds, contoids in particular. The Finger Tapping Test is a measure of fine motor speech using a special mechanical finger-tapping device. Additional measures were developed by Reitan. These include the Tactile Figure Recognition Test, the Fingertip Numbering Test, the Tactile Form Recognition Test, the Aphasia Screening Test, the Strength of Grip Test, and the Trailmaking Test (for test descriptions and details of administration, see Reitan and Wolfson, 1992). In addition to the tests previously enumerated, the age-appropriate Wechsler Intelligence Scale and a comprehensive memory assessment (such as the Wechsler Memory Scales) are administered along with a personality test (e.g., the Minnesota Multiphasic Personality Inventory (MMPI-II)) and academic achievement measures.

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With clinical experience, neuropsychological test selection should become easier and supplementation can be made as needed. Prior to the neuropsychological evaluation, it is often valuable to have the examinee fill out an extensive history form that covers general physical, mental, emotional, and neuropsychological problems. These forms can then be reviewed as a part of the clinical interview. In addition, it is essential to administer a brief mental status examination to determine if the examinee is currently suited for neuropsychological testing and at what level. Individuals may be sleep deprived, cognitively confused, or overly fatigued to the point that neuropsychological testing at that time would not yield valid results. In selecting a forensic neuropsychological battery, several factors should be considered. For example, how much time is available and in what quantities? Access to incarcerated individuals for long periods for a comprehensive assessment can be very limited for obvious reasons. On occasion, a maximum of 3 to 5 hours may be all of the time available, and thus careful planning of the neuropsychological test battery will be required. If the neuropsychological testing is to be conducted in a forensic neuropsychologist’s office and there is essentially unlimited time and access to a large selection of neuropsychological tests, then there are many degrees of freedom with respect to the choice of neuropsychological measures to be used. However, regardless of the constraints placed with regard to time and testing accommodations, the evaluation should be thorough and the limitations clearly detailed in the report, with the reasons for the limitations stated clearly. A second factor influencing test or test battery choice concerns the critical legal questions to be addressed. In personal injury cases or independent medical examinations (IMEs), the questions may be straightforward — such as to what extent, if any, is the neuropsychological impairment? In criminal cases, however, the legal questions can be more complex and ambiguous. Here, and elsewhere, it is important to select neuropsychological tests whose results would be clear, objective, and understandable to all concerned. A third factor to keep in mind is that, at times, multiple areas of neuropsychological deficits are found, and the person may be just generally confused, demented, or in some other way globally impaired. It is important to use a comprehensive battery of neuropsychological tests so that all relevant areas of neuropsychological functioning are assessed and conclusions are not premature. This can also help ensure that areas of no impairment and individual strengths are clearly identified. Fourth, when neuropsychological deficits are identified, it is best to confirm their presence through more than a single test procedure or sign. Poor performance on neuropsychological tests can be a result of multiple causes (e.g., poor vision, impaired motor problems, poor hearing, etc.) (Walsh and Darby, 1999). Neuropsychological tests are very complex, and thus there can be several reasons for failing. For example, people with very poor eyesight as well as people who are confused secondary to their medications will have difficulty on both the Wisconsin Card Sorting Test (Berg, 1948) and the Trailmaking Test, Part B (Reitan, 1958). The more specific the neuropsychological deficits identified, the clearer the picture of the neuropsychological deficits and the more useful the neuropsychological report will be in forensic TBI cases. It should also be stressed that there are several ways of passing a test, and just because someone does well on a task that is supposed to tap into a specific

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n­ europsychological function, it does not mean that there is not a degree of neuropsychological defect in that particular area of mental processing. For example, in one case an examinee did reasonably well on a verbal fluency task, but otherwise showed severe executive functioning deficits in all the other neuropsychology data (including the person’s personal history and via behavioral observations during the testing). The forensic neuropsychologist in this case reviewed the neuropsychological evaluation report and stated an opinion that, since verbal fluency was not defective, there could be no executive dysfunction. This assumption was most probably erroneous, as the opinion was based on the results of just one test or piece of data. Thus, one test does not a diagnosis make (or opinion prove). Additionally, it is important to note that the more consistency in test/cognitive profiles, the more confidence the examiner will have in confirming that such deficits are real. Greiffenstein and Cohen (2005) list a number of additional cautions in test selection. First, they suggest using a standardized approach. This means the tests selected are standardized and there is an expectation that because of standardization, the same results would be forthcoming regardless of who is administering the tests. A corollary to this is that administration of all tests should closely follow the direction in the test manual and therefore match the manner in which the test normative data were collected. Otherwise, the normative data may not be applicable. Modifications to test administration procedures are best applied in a “testing the limits” fashion after the standard test administration has been completed and the test data recorded. Next, Greiffenstein and Cohen (2005) suggest the use of multiple neuropsychological tests. There are many reasons for a poor performance on a single neuropsychological test, which include premorbid impairments, experience, and overall cognitive ability. Highly intelligent persons may do fairly well on many neuropsychological tests of executive functioning, even following substantial head trauma, due to greater amounts of neurocognitive reserve capacity. A single neuropsychological test of executive functioning might well miss a substantial compromise in cognitive functioning. Poor performance on a single test for reasons other than neuropsychological impairment is possible and could also lead to mistaken conclusions. Using a group of tests to assess brain functioning will improve both specificity (normals do well) and sensitivity (persons with damage to the brain in those areas do poorly). Another consideration mentioned by Greiffenstein and Cohen (2005) includes using tests that have a sound scientific basis and tests with a sound normative basis. Decision making in the legal arena may include subjective information, but the neuropsychological data are only included as empirically based facts that are supported by a scientific foundation. In addition, the neuropsychological tests used to a draw conclusion should have recent normative data against which the person’s performance can be compared (see also the Daubert discussion). Thus, when selecting tests to be used in the forensic evaluation, the examiner should use the most recent versions of all standardized tests, as those will likely have the most current and relevant normative data. Specifically, tests included in the forensic neuropsychological evaluation should:

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Additionally, tests and test batteries’ base rate data for both normal and impaired (e.g., brain injured) populations can provide the examiner with even more robust scientific data from which to draw an opinion. Base rate data basically provide the examiner with information on how common or rare a specific score is within a normal (or specifically impaired) population. For example, the difference between an examinee’s IQ score and a specific memory index score may be statistically significant, but such a difference may commonly occur in 25% of the normal population. Thus, such a difference cannot be considered clinically significant or relevant. More currently developed or revised tests such as the Wechsler Memory Scales–3rd edition (WMS-III; Technical Manual, 2002) and the Wisconsin Card Sorting Test (WCST; Test Manual — Revised, 1993) provide improved normative and base rate data. In all forensic neuropsychological evaluations emotional/personality assessment is also essential and should be conducted through standard methods of personality or psychological measurement. The forensic neuropsychologist needs to assess if psychological factors are or might be affecting the examinee’s behaviors, symptom presentation, or cognitive testing results. Obviously, clinical judgment plays a major role in the interpretation, and opinions drawn from these tests and projective tests (such as the Thematic Apperception Test and Rorschach Inkblot Test) may provide valuable insights; however, conclusions from these projective measures should be supported by data from (what are considered to be) more objective tests, such as the MMPI-II or the Millon Clinical Multiaxial Inventory-III (MCMI-III). Thus, standard methods of objective emotional status/personality assessment should be used. Also, the examinee should be carefully supervised during objective personality test administration and should not be allowed to take an objective personality inventory home to complete. Differentiating between borderline and antisocial personality disorders, between avoidant and dependent personality disorders can be very difficult in the field, as an examinee may actually have multiple personality disorders. An accurate emotional status/personality assessment can serve as an excellent background for the other neuropsychological test findings and is often very important for case disposition. Greiffenstein and Cohen (2005) also assert that every forensic neuropsychological evaluation must always assess the patient’s effort and symptom validity. It is clear that even the best clinician may be fooled by poor effort, and that in the forensic arena at least two objective tests of effort should be included in each forensic neuropsychological evaluation. Passing an effort test is, of course, not conclusive proof that maximal effort has been put forth on all tests, but a failure (invalid or questionable validity score) on an effort test certainly calls other results into question. Put another way, passing an effort test allows the person to escape being labeled as having given poor effort in a global sense, but does not rule out a variable degree of effort over other measures. More discussion on tests of examinee effort will be provided later in this chapter. In summary, the forensic neuropsychologist needs to use a logical method to ensure appropriate test selection. Tests should all be current, universally recognized within the profession, and relevant to the legal question at hand. Examiners should avoid the use of homemade and novel assessment approaches that are not scientific or lack robust normative data or development procedure. Experimental procedures

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prove to be valuable, but until the value is firmly established via published research, they are best not included in a forensic neuropsychological evaluation. Certainly diagnostic conclusions should not be based on such experimental data.

4.10 Specific Cognitive Functions to Be Assessed Appendix A of this text includes a list of cognitive areas and symptoms that should be assessed as part of the forensic neuropsychological evaluation. In all forensic neuropsychology cases, careful evaluation of intelligence and memory abilities is essential. Intelligence level sets the standard by which to compare other cognitive test results. For example, if an examinee has (and is determined to always have had) an IQ of 62 (within the mildly mentally retarded range), then the neuropsychologist could expect that person to perform comparably on most of the other cognitive tests. Thus, if this same person obtains an index score of 62 on a test of memory, the neuropsychologist could not easily argue that the memory has declined (say, due to a recent brain injury). It may have declined, but additional evidence would be needed to support such an opinion (as a memory index score of 62 would not necessarily be unusual to find in a normal person with an IQ of 62). However, if a person with an IQ of 116 (high average range) obtains a memory index score of 62, the neuropsychologist would have strong evidence (if other data support such) to suggest a decline in memory. Also, if the intelligence scores appear to be under- or overestimates of actual intellectual functioning, then the examiner should clearly state why these scores may not be valid or an accurate reflection of the examinee’s IQ level (and support the opinion with concrete examples). The examining neuropsycholigist should be cautious in reporting indices whose component scores vary considerably. The composite index may not be representative. For example, an overall Processing Speed Index score (which is comprised of different subtests) may come out near the 50th percentile; however, if it is composed of a scale score of 5 (5th percentile) on the Digit Symbol/Coding subtest and a scale score of 15 (95th percentile) on the Symbol Search subtest, then the resultant composite index score may not be representative of the test construct of Processing Speed. One possible clinical interpretation might be that the Processing Speed Index score is at the 95th percentile (as indicated by the Symbol Search score), while some extra test factor (e.g., attentional impairment) could have adversely affected the Digit Symbol subtest result. Although performance on IQ tests does not always decline after brain injury, especially after mild TBI (even in the presence of other cognitive impairments), determination of an estimated premorbid (e.g., preinjury) IQ level is essential. Unfortunately, there is no exact way to determine premorbid intellectual functioning. However, preinjury academic achievements, standardized tests scores (i.e., PSAT, SAT, GRE, LSAT, etc.) and occupational attainments or history can be helpful in determining a reliable estimate. Lezak (1995), for example, promoted a “best performance” method of using the patient’s highest postinjury test score as an estimate of intellectual level; however, this method has been severely criticized as overestimating intellectual levels (Lynch and McCaffrey, 1997). Many clinical psychologists have used certain individual subtest scores, such as Vocabulary, as a basis of

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estimating premorbid functioning. The rationale for using such an approach is that this (and select other) subtests are less influenced by neurological trauma or disease than other subtests. Another accepted standardized procedure for estimating premorbid intellectual level has used a regression statistical model applied to demographics and history (such as that used by Barona et al., 1984). Also, word reading level as assessed by the standard score of the Reading subtest of the Wide Range Achievement Test–III (Wilson, 1991) has been shown to be a reasonable estimate of intellectual level. This is similar to the approach used in the Wechsler Test of Adult Reading (Psychological Corporation, 2001), which can also be used to produce an estimate of intelligence. However, such methods have been shown to consistently overestimate in persons with premorbidly low IQs and underestimate in persons with premorbidly high ones. Thus, the examining neuropsychologist would do best in using a variety of methods for estimating premorbid IQ on which to base his or her final opinion. Assessment of memory is also critical because deficits in different types of memory (e.g., memory of novel stimuli) are indicative of different types of neurological dysfunction or diagnosis as well as of prognosis (particularly after TBI). Memory is a complex, multifaceted concept, and there are multiple models of memory processes and abilities. The simplest way of conceptualizing memory is in three parts: (1) immediate memory (or working memory, or attention and concentration), (2) delayed memory (what laypersons think of as short-term memory), and (3) remote memory (what laypersons think of as long-term memory). Delayed memory is often divided into visual memory and auditory memory. Delayed memory is usually the aspect of memory that is of greatest importance. Delayed memory requires an individual to encode information, store the information, and retrieve the stored information after a period. In other words, it is necessary to organize information, store it, and then find the stored information quickly. Think of getting bills in the mail, organizing the bills in file folders (medical, dental, gas, oil, etc.), putting the file folders in a file cabinet, and then later finding and taking the bills from the file folders in the file cabinet. Delayed memory can be assessed by both free recall (What was the list of words I told you?) and recognition formats (Which of these words were on the list I told you?), and often after a period of 20 to 30 minutes. One way to structure the memory in a forensic neuropsychological evaluation and report is first to conceptualize the relevant legal questions and concerns about memory. Most evaluators use a standard approach to evaluating memory functions, but with a preliminary view of what could be impaired or preserved. Relevant qualitative observations can be noted and included to support the examiner’s section. The type and severity of memory deficits should be consistent with the examinee’s type and severity of (suspected) brain injury and his or her presentation and performance in other respects. For example, if an examinee performs in the severely impaired range on all memory tests administered (similar to a profile of a person with Alzheimer’s dementia) but is able to drive to and find the examiner’s office on his or her own, complete all registration forms with the receptionist, and give a fluent and detailed personal history during the interview, the memory test results are quite suspect. A cardinal sin in neuropsychological assessment is testing and analyzing memory test results/performance in isolation of (or without administering) other cognitive functions that could greatly

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influence memory test performance. Deficits in such functions as attention, speed of information processing, speech language, and executive control can all result in poor memory performance even though there may not be any damage to the memory areas of the brain (e.g., temporal lobes and hyppocampal regions). Impaired language functioning can be very important to assess and may be impaired either as a consequence of some trauma or as a mediator in causing whatever occurred to happen. In addition to the standard measures of expressive and receptive language, repetition should be included to differentiate between perisylvian aphasias and other types of aphasias or disorders. Similarly, word-finding deficits should be described from the perspectives of both the formal tests of confrontational naming and ambient behavior. Deficits in prosody and pragmatics should also be noted. Assessment of sensory/perceptual and motor functions can be invaluable to determine if there is lateralization of neuropsychological impairment to the right or left hemisphere, and can detail specific types of difficulties the individual is experiencing (or even type or location of TBI incurred). At the same time, peripheral factors such as a broken hand, wrist, or arm can cause many of the lateralized sensory/perceptual and motor differences observed. In one case, an examinee, when assessed with a lateral dominance inventory, responded consistently with the left hand. However, upon further investigation by the examiner, it was found that the examinee was holding a treasured object in her right hand and was not willing to “give up the object for any neuropsychological testing.” In addition, ideomotor, ideational, and the various forms of constructional apraxia should be assessed. Neuropsychological deficits identified should be related to the presenting problems or discussed in regard to their potential adverse effect on the other test results/performance. Gestaltic and similar types of right hemisphere deficits can also be important, especially as they may be related to nonverbal learning deficits or level of social functioning (possibly restricted through difficulty in reading body language). As discussed in Chapter 1, assessment of executive functions is a critical part of the forensic neuropsycholoical evaluation in TBI cases. However, as previously noted, they are often the most difficult to measure. Deficits in executive function after brain injury can often be subtle or only manifest themselves through social behaviors or interactions. Thus, use of formal testing and observation by the trained examiner (during both the interview and the testing sessions) is necessary to obtain the data needed to measure these functions.

4.11 Assessment of Examinee Effort during Testing The concept of assessing for effort has been well accepted in forensic neuropsychology, and few forensic neuropsychologists would think of conducting an evaluation without at least two, and preferably more, formal tests of effort. With the advent of these specialized tests of effort, it has become clear how poor clinical judgment is with regard to assessing effort. The specialized tests of effort, however, are best at picking up intentional lack of best performance. Persons with depression may perform very poorly due to a lack of motivation. In one case, a young lady’s intellectual score went from 79 to 129 over 6 months as her severe depression lifted.

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­ seudodementia is the prototypic example of poor performance due to lack of motiP vation, which is often not intentional. Forensic neuropsychologists should, of course, continue to observe all behaviors that could be indicative of a failure of full effort. This would include inconsistent results and results in which equivalent items are failed at one point but passed at others. These findings can be very subtle to sort out, however. An examinee may gain a substantially higher score on a facial recognition task after a delay than immediately after the learning trials. However, there is a good reason for this. On the immediate retention, the person has seen the stimuli only once before; however, on the delay portion of this task, they have seen the correct stimuli twice and the incorrect ones not at all. This repetition of stimuli may be the basis for the apparent improved performance. It is also important to differentiate between factitious disorders and pure lack of effort. In both cases, the person will intentionally feign, but in the former, the incentive is not obvious, and in the latter, the person will not be willing to go through great suffering to maintain the feigned role. The third possibility is a somatoform disorder, in which the symptoms, though maybe not real or not real to the extent described, are not intentionally feigned. The patient who exaggerates real symptoms, but not in an outlandish manner, can at times be more problematic. If there is detection of a lack of effort, the next question is what to do about it. Here few experts agree. While very good performances and very poor performances on specialized tests of effort can be accepted at face value, mixed performances on specialized tests of effort can be problematic to sort out. Forensic neuropsychologists must rely on their experience, training, and ability. Concern about somatoform and factitious disorders as well as malingering has been long standing, and more extended discussions are available in Cullum et al. (1991), Iverson (2003), and Larrabee (2005a). Finally, it is advised that the examiner document general observations of the examinee during testing. Completion of a structured behavioral observation form (such as Figure 4.1) immediately following the testing session can be very beneficial to the examiner when writing the formal report.

4.12 Test Results, Analysis, and Report At times, a forensic neuropsychological evaluation may become compromised either by coaching of the patient to do poorly or by a forced third-party observer. The effects of these confounds should be included within the analysis and report. In addition, a careful and objective analysis and opinion of examinee effort during the testing should always be included in the report, even when poor performance is not deemed to be in the best interest of the person being evaluated. In writing the neuropsychological test report, every statement needs to be supported by data and, preferably, by multiple bits of data. Everything stated is best explained by using examples from neuropsychological test data, records reviewed, the interview, and subsequent behavior of the individual, especially with regard to the legal issue at hand. Greiffenstein and Cohen (2005) also suggest that blind interpretation of neuropsychological test data be avoided. Blind interpretation is when an examiner conducts an analysis of the test results without having personally interviewed or

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      Figure 4.1  Behavioral observation form.

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Table 4.1 Sample Outline of Sections for the Forensic Neuropsychological Report Client identifying data Client demographic data (DOB, etc.) Dates of evaluation Date of report Brief statement of reason for evaluation List of tests administered List of documents reviewed Statement of information provided to examinee regarding purpose of evaluation and to whom report will be sent Patient history   Developmental   Medical   Psychiatric (if any)   Legal/criminal (if any)   Academic   Vocational Mental status exam Behavioral observations during interview and testing Test results (reported by test or cognitive function assessed) Summary and impressions Diagnostic impressions

observed the examinee. Blind interpretation is helpful in demonstrating the power of the neuropsychological test data, but in forensic neuropsychology evaluations, both observed behavior during the interview and records reviews are essential sources of patient information on which to base opinions. All such sources of information need to be integrated with the neuropsychological test data to form professional opinions that show congruity between each. The report should be organized in a very simple and straightforward manner — preferably by relevant sections. Table 4.1 provides an example of a forensic report outline by section. In the end, the “lay reader” (or nonneuropsychologist) should know exactly what points are made and why. Hartlage (2003) emphatically avers: Perform each step as if you plan to defend it in court. Whether reviewing records involving the patient, designing and conducting an assessment procedure for assessing neuropsychological status, interpreting data, or reviewing scientific literature to provide a context for your data, consider how your activities may be presented on direct examination and defended on cross-examination. (p. 315)

At the conclusion of the testing and scoring, the referring attorney can be informed, in very general terms, of the neuropsychological test results. This can be helpful to the forensic neuropsychologist in terms of exploring with the attorney the relevant legal issues that should be addressed in writing the neuropsychological

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testing report. However, the neuropsychological testing report is the product of the forensic neuropsychologist, and the forensic neuropsychologist alone is responsible for the conclusions drawn and opinions offered. Any potential conflicts between the forensic neuropsychologist as an expert witness providing scientific testimony and the referring attorney, who is ethically bound to be an advocate for the client’s interests, should have been addressed prior to the evaluation. Not unexpectedly, some attorneys may become very upset when neuropsychological test results are harmful to their case. There are two very different sets of professional ethics and roles involved here, and the forensic neuropsychologist is bound to present the neuropsychological data fairly, regardless of possible adverse effects on the referring attorney’s case. In some cases, knowing weaknesses in their case can be helpful to the referring attorney so that a strategic decision can be made. Also, while the referring attorney may be upset in the short run, in the long run, the attorney has greater respect for an expert witness who has integrity and is more likely to refer cases in the future when an accurate assessment is needed. As in any psychological testing report, reporting of raw scores can serve to confuse the reader more than to explain the testing results (Reynolds and Horton, 2006). Reporting any type of scaled scores can also be very difficult, because there is a wide variety of standard scores used in neuropsychological tests (i.e., T-scores, Stanines, percentiles, etc.) and because numbers take on a kind of magic that is separate from their literal meaning. To a nonneuropsychologist, a person who scores a 103 on an intellectual examination may appear to be more intelligent than another person who scores a 100. However, an IQ score of 103 is not significantly different from a score of 100, as both fall roughly in the middle of the average range. These two sets of scores, however, would be quite different if the scores were indices of body temperature. Put another way, baseball fans can understand that someone who is batting .262 is about the same as the one who is batting .258, while batting over .400 is exceptional, because the fans have some familiarity with batting averages and have a sense of the distribution of the scores over major league baseball players. However, mixing different types of measurement scales can be problematic and may even prove to be misleading to the nonneuropsychologists participating in the legal process. For example, consider the difference between the scale scores of 10 and 15; the former score falls into the 50th percentile or average range of functioning, while the later falls into the 95th percentile or superior range. However, in index or IQ scores, a score of 100 falls within the average range (50th percentile), while a score of 105 only falls into a slightly higher range (63rd percentile, or high average range of functioning). Many attorneys also like to have the neuropsychologist review results and scores test by test during the expert witness testimony phase. However, it should made clear to all concerned that the opinions are based on the composite analysis of all the data (including the various test results) and not just on one specific test score. Although all experts like to feel that their professional opinion should be respected, it is best to avoid such statements as “In my professional opinion” or “In my professional experience.” Also, the opinions do not need to be restated once clearly presented. If there are neuropsychological deficits, then such should be clearly stated or specified within the report. If the data are unclear, then the limits of

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the testing or the opinions should be stated. There is no need to include words such as “might” or “could be.” “Hedge” statements such as “People with this profile tend to …” should be avoided, as how people with that profile tend to be is not necessarily relevant to the legal question at hand. Portions of the test results section of the report should be guided by the presenting problems and legal issues. Forensic neuropsychology reports, in general, may include neuropsychological domain areas of mental status, intelligence, academic achievement, sensory/perceptual, language, visual-spatial, motor, memory, effort, executive functions, and personality, or minor variations and combinations of these. All conclusions and opinions should be supported with evidence from the neuropsychological testing. Conclusions and opinions should clearly be related to the presenting problem or the legal issue at hand. The report of the examinee’s mental status should at least include the person’s orientation to person, place, time, and situation. When discussing performance in immediate and sustained attention and concentration, the examiner should make reference to the appropriate subtests used to assess these functions (such as Digits Forward and Trailmaking Test, Part A). The report of examinee effort section is often quite concise. In addition to the objective results from formal effort testing, there should be clinical evidence (e.g., secondary gain) and behavioral observations (e.g., evasive and misleading answers) to back up the conclusions drawn (Iverson, 2003). Although this section is often straightforward, one must be careful to differentiate between the various forms of lack of effort. As discussed previously, there are many reasons for a person not to put forth good effort on a set of formal tests (including not feeling well, not wanting to take the tests, or being clinically depressed). The examiner thus needs to be cautious not to overly interpret perceived lack of effort on the part of an examinee. It should be remembered that poor effort on (or invalidity of the results on) a psychological test (such as the MMPI-II) does not necessarily mean that the results on the cognitive tests are invalid (or visa versa). Performance on each type of test needs to be considered, at least initially, independently before the examiner forms an opinion on the validity of the results. Some examiners are more readily willing to assert that an examinee is malingering. However, technically speaking, malingering is defined as “a willful intent to deceive,” and it is very difficult for even the best forensic neuropsychologists to prove intent. A summary of emotional status/personality is a standard part of every forensic neuropsychological report and, as previously discussed, needs to be considered as it relates to potential effect on test performance and results. Unfortunately, in many cases the emotional status/personality section may be perhaps the worst area of the forensic neuropsychology report. At times, unsubstantiated diagnoses of personality disorders or ones that are contraindicated, but that support the perspective of the referring attorney, are used. A question that often must be addressed within the analysis is if a current psychological condition (typically clinical depression) was present before the injury, and if that condition can account for the cognitive deficits with which the examinee is presenting. These are very complex issues, especially when considering that clinical depression or depressive-like symptoms are very common following or as a direct

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result of brain injury. Complicating the matter further is that clinical depression can be a direct result of neurological insult to the brain (due to chemical and neuroanatomical effects) or an indirect result (due to a psychological reaction to the injury, subsequent changes in lifestyle, or other medical/physical problems, such as sleep disorders or chronic pain). The neuropsychologist needs to thoroughly analyze the type and severity of the current psychological symptoms, compare these to preinjury medical documentation (if any) of such symptoms or disorders, and then state a well-supported opinion as to their onset and possible correlation with the reported brain injury. In criminal cases, a forensic neuropsychologist, at times, is requested to include an assessment of the level of moral maturity. This is often requested when assessing juveniles and intellectually compromised individuals, and would include describing the patient’s ability to have empathy for others (or if the person appears to have a conscience). Although there are several published methods of assessment for this, it is usually best to simply make a statement about why the patient may have done the things he or she did. Methods such as those used by Kohlberg (1976) can be helpful in determining the level of moral maturity. Executive function deficits are very difficult to assess but have widespread effects on behavior in general. Because of this, a section of the report should include a specific discussion of the examinee’s strengths and weaknesses in executive functioning (Reynolds and Horton, 2006). It is important that the examiner covers the full range of potential executive dysfunctions, including those that have a heavy affective component, those involving language, and those that are predominantly motor in nature.

4.13 Summary The summary portion may be concise but must clearly explain the neuropsychological assessment findings. For many reports, this summary section will be the first part of the report read, so in a way, it has to stand alone. The neuropsychological report should be designed to build a case to support the examiner’s conclusions and diagnosis (or diagnostic impressions). Thus, all the information and data (patient history, presentation, tests results, etc.) have been presented so as to objectively show how and why the examiner has come to the conclusions and opinions now presented. Here, clearly and succinctly, the neuropsychological findings should be related to the presenting question. At times this can be very difficult, as clinical diagnoses or impressions do not always easily fit within legal definitions. For example, the attorney may want to know how much of the examinee’s current depression is a result of the recent brain injury, or how much of the cognitive deficit is due to the current injury vs. the brain injury that occurred 10 years before. Clinical tests and measures used by the forensic neuropsychologist were not designed to answer such questions. Thus, the neuropsychologist should only provide opinions and conclusions that can be reasonably and reliably made from the evaluation results (“based on a reasonable degree of neuropsychological certainty,” as the attorney may put it). The neuropsychologist should also avoid selective interpretation, in which only the data that support the author’s position are discussed while ignoring the rest.

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4.14 Diagnostic Impressions Forensic neuropsychology reports often include an Axis I diagnosis from the Diagnostic and Statistical Manual of Mental Disorders, 4th revision (DSM-IV, 2000), but it is often appropriate to include all five axes, or at least the first three within this section. Chapter 1 of this text provides a thorough discussion and review of the DSM-IV diagnoses typically used by neuropsychologists, especially in cases of suspected TBI. When using a DSM-IV diagnosis, it is important to show how each of the DSM IV criteria was met (typically as part of the discussion within the summary and conclusions section of the report). The diagnosis should follow logically from and be clearly supported by the interview observations, neuropsychological test data, and records. It is recommended that the diagnosis be linked to the clinical manifestation of the question at hand if that is possible. For example, in the case of an independent medical examination (IME), how the personality disturbance or psychiatric disorders found may facilitate or interfere with rehabilitation can be crucial in deciding a legal question. In criminal cases, the same considerations and factors can assist with disposition. For example, the forensic neuropsychologist should not say, “In my opinion …,” but rather, “Here is how the person meets the objective criteria for …” While Greiffenstein and Cohen (2005) may appear, at first, to take another view, in fact there are substantial areas of agreement. Greiffenstein and Cohen (2005) suggest that in the forensic neuropsychological report, psychiatric diagnoses should be avoided. However, they do agree that when one is talking about formal psychiatric diagnoses where there are specific criteria, a formal diagnosis is appropriate. The point they make, which is a very good one, is that the forensic neuropsychologist should not go beyond the certainty of his or her neuropsychological test data. One might say that the data are consistent with frontal lobe pathology, or because of the timing and nature of a given blow to the head, the subsequent behavioral changes were likely caused by the blow. Assigning cause in most cases is probabilistic rather than exact, and should be stated accurately to convey that absolute certainty is not possible. Because forensic neuropsychologists are not medical doctors, they are only trained and competent to make diagnoses that are covered within the DSM-IV (e.g., mental disorders). Thus, they are not trained or “competent” to make a medical diagnosis. Because traumatic brain injury is a medical diagnosis, a neuropsychologist cannot and should not make such a diagnosis. However, it is appropriate to state: “The cognitive disorder, symptoms, and profile are consistent with effects commonly seen after brain injury.” It is also important to describe the etiology of both recent and preexisting neuropsychological impairments and emotional difficulties. For example, is a current reactive depression added to a long-term endogenous depression or dysthymia? What kinds of learning disabilities were evident prior to the recent automobile accident when the person was alleged to have sustained a brain injury? In conclusion, the forensic neuropsychology report has the important purpose of providing the legal field with scientific evidence with which to assist judges and juries in making crucial legal decisions that affect both individuals and society. To the extent that forensic neuropsychology expert reports are seen as unbiased and

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based on empirical research findings and assist in the dispensing of justice, the forensic neuropsychologist will be welcome in the forensic arena in the future (Zillmer, 2004). The hope and expectation is that this chapter will be of value in explaining and understanding the forensic neuropsychology report and will positively contribute to fair judicial decision making.

References American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders, 4th rev. Author, Washington, DC. Barona, A., Reynolds, C.R., and Chastain, R. (1984). A demographically based index of premorbid intelligence for the WAIS-R. Journal of Consulting and Clinical Psychology, 52, 885–887. Berg, E.A. (1948). A simple objective treatment for measuring flexibility in thinking. Journal of General Psychology, 39, 15–22. Blau, T.H. (1998). The Psychologist as An Expert Witness, 2nd ed. Wiley, New York. Carson, J.M. and Bee, C.M. (2003). Diagnostic issues: attorney perspective. In Handbook of Forensic Neuropsychology, Horton, A.M., Jr. and Hartlage, L.C., Eds. Springer, New York, pp. 285–313. Cullum, C.M., Heaton, R.K., and Grant, I. (1991). Psychogenic factors influencing neuropsychological performance: somatoform disorders, factitious disorders, and malingering. In Forensic Neuropsychology: Legal and Scientific Bases, Doerr, H.O. and Carlin, A.S., Eds. Guilford, New York, pp. 141–171. Daubert v. Merrell Dow. (1993). 509 U.S. 579. Davison, L.A. (1974). Introduction. In Clinical Neuropsychology: Current Status and Applications, Reitan, R.M. and Davison, L.A., Eds. Wiley, New York, pp. 1–8. Doerr, H.O. (1991). When should an attorney consider consultation with a neuropsychologist? In Forensic Neuropsychology: Legal and Scientific Bases, Doerr, H.O. and Carlin, A.S., Eds. Guilford, New York, pp. 33–42. Greiffenstein, M.F. and Cohen, L. (2005). Neuropsychology and the law: principles of productive attorney–neuropsychologist relations. In Forensic Neuropsychology: A Scientific Approach, Larrabee, G., Ed. Oxford, New York, pp. 29–91. Hartlage, L.C. (2003). Neuropsychology in the courtroom. In Handbook of Forensic Neuropsychology, Horton, A.M., Jr. and Hartlage, L.C., Eds. Springer, New York, pp. 315–333. Heilbrun, K., Marczyk, G., DeMatteo, D., Zillmer, E., Harris, J., and Jennings, T. (2003). Principles of forensic mental health assessment: implications for neuropsychological assessment in the forensic context. Assessment, 10, 329–343. Horton, A.M., Jr. (1997). Halstead Reitan Neuropsychology Test Battery. In The Neuropsychology Handbook, 2nd ed., Horton, A.M., Jr. and Wedding, D., Eds. Springer, New York. Horton, A.M. Jr. and Hartlage, L.C., Eds. (2003). Handbook of Forensic Neuropsychology. Springer, New York. Horton, A.M., Jr. and Wedding, D. (1984). Clinical and Behavioral Neuropsychology. Praeger, New York. Horton, A.M., Jr. and Wedding, D., Eds. (1997). The Neuropsychology Handbook, 2nd ed. Springer, New York. Iverson, G.L. (2003). Detecting malingering in civil forensic evaluations. In Handbook of Forensic Neuropsychology, Horton, A.M., Jr. and Hartlage, L.C., Eds. Springer, New York, pp. 137–177. Kohlberg, L. (1976). Moral stages and moralization: the cognitive-developmental approach. In Moral Development Behavior: Theory, Research and Social Issues, Lickona, J., Ed. Hold, Reinhart and Winston, New York.

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Larrabee, G.L. (2005a). Assessment of malingering. In Forensic Neuropsychology: A Scientific Approach, Larrabee, G., Ed. Oxford, New York, pp. 115–158. Larrabee, G.L. (2005b). Mild traumatic brain injury. In Forensic Neuropsychology: A Scientific Approach, Larrabee, G., Ed. Oxford, New York, pp. 209–236. Lezak, M. (1995). Neuropsychological Assessment, 3rd ed. Oxford, New York. Long, C.J. and Collins, L.F. (1997). Ecological validity and forensic neuropsychological assessment. In The Practice of Forensic Neuropsychology: Meeting Challenges in the Courtroom, McCaffrey, R.J., Williams, A.D., Fisher, J.M., and Lang, L.C., Eds. Plenum, New York, pp. 153–164. Luria, A.R. (1966). Higher Cortical Functions in Man. Basic Books, New York. Lynch, J.K. and McCaffrey, R.J. (1997). Premorbid intellectual functioning and the determination of cognitive loss. In The Practice of Forensic Neuropsychology: Meeting Challenges in the Courtroom, McCaffrey, R.J., Williams, A.D., Fisher, J.M., and Lang, L.C., Eds. Plenum, New York, pp. 91–115. Meier, M.J. (1974). Some challenges for clinical neuropsychology. In Clinical Neuropsychology: Current Status and Applications, Reitan, R.M. and Davison, L.A., Eds. Wiley, New York, pp. 289–323. Mittenberg, W., Patton, C., Canyock, E.M., and Condit, D.C. (2002). Base rates of malingering and symptom exaggeration. Journal of Clinical and Experimental Neuropsychology, 24, 1094–1102. Project on Scientific Knowledge and Public Policy. (2003, June). Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of. Retrieved January 15, 2007, from http://www.defendingscience.org/courts/Daubert-report-excerpt.cfm Psychological Corporation. (2002). WAIS-III & WMS III: Technical Manual. Author, San Antonio, TX. Psychological Corporation. (2001). Wechsler Test of Adult Reading. Author, San Antonio, TX. Reitan, R.M. (1958). Validity of the Trail Making Test as an indicator of brain damage. Perceptual and Motor Skills, 8, 271–276. Reitan, R.M. and Wolfson, D. (1992). The Halstead-Reitan Neuropsychological Test Battery for Adults. Neuropsychology Press, Tucson, AZ. Reitan, R.M. and Wolfson, D. (2002). Mild Head Injury: Cognitive, Intellectual and Emotional Consequences. Neuropsychology Press, Tucson, AZ. Reynolds, C.R. (1998). Detection of Malingering during Head Injury Litigation. Plenum Press, New York. Reynolds, C.R. and Horton, A.M., Jr. (2006). Test of Verbal Conceptualization and Fluency: Examiner’s Manual. ProEd, Austin, TX. Strauss, E., Sherman, E.M.S., and Spreen, O. (2006). A Compendium, of Neuropsychological Tests: Administration, Norms, and Commentary, 3rd ed. Oxford, New York. Walsh, K. and Darby, D. (1999). Neuropsychology: A Clinical Approach, 4th ed. Churchill Livingstone, Edinburgh. Wilson, R.S. and Stebbins, G.T. (1991). Estimating premorbid ability and preexisting neuropsychological deficits. In Forensic Neuropsychology: Legal and Scientific Bases, Doerr, H.O. and Carlin, A.S., Eds. Guilford, New York, pp. 89–98. Zillmer, E.A. (2004). The future of neuropsychology. Archives of Clinical Neuropsychology, 19, 713–724. Zillmer, E.A. and Green, H.K. (2006). Neuropsychological assessment in the forensic setting. In Forensic Uses of Clinical Assessment Instruments, Archer, R.P., Ed. Lawrence Erlbaum Associates, Mahwah, NJ, pp. 209–227.

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Neuropsychological and Psychological Rehabilitation After TBI Fofi Constantinidou

Contents 5.1 5.2 5.3

Introduction.................................................................................................... 91 The Continuum of Care and Rehabilitation after TBI................................... 93 Neuropsychological Rehabilitation Across the Continuum of Care..............94 5.3.1 Models of Cognitive Rehabilitation.................................................... 95 5.3.2 Treatment of Specific Cognitive Domains..........................................96 5.3.2.1 Attention................................................................................96 5.3.2.2 Memory.................................................................................97 5.3.2.3 Categorization.......................................................................99 5.3.2.4 Language and Communication Disorders........................... 101 5.3.2.5 Executive Abilities.............................................................. 102 5.3.2.6 Therapy Effectiveness......................................................... 103 5.3.3 Community and Vocation Reintegration.......................................... 103 5.4 Psychological and Psychosocial Support Following TBI............................. 105 5.4.1 Communication and Environmental Modification Strategies.......... 106 5.4.2 Applied Behavioral Analysis............................................................ 107 5.4.3 Metacognitive Self-Regulatory Strategies and Self-Awareness....... 108 5.4.4 Management of Psychological Outcomes of TBI............................. 109 5.4.5 Supporting Families.......................................................................... 110 5.5 Conclusions.................................................................................................. 111 References............................................................................................................... 111 Appendix 5.1: Rancho Los Amigos Scale.............................................................. 117

5.1 Introduction According to the Centers for Disease Control and Prevention, traumatic brain injury (TBI) is the primary cause of disability in young adults under the age of 34. The TBI survivor may be left with significant neuropsychological deficits that encompass not only cognitive abilities such as attention, categorization, memory, and executive dysfunction, but also personality, behavioral, and emotional problems relating to disability adjustment, self-awareness, and coping difficulties. Some of these effects may be evident immediately or within days after the injury, or may develop over the 91

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course of weeks or even months following the injury. Consequently, the patient may be unable to resume his or her preinjury levels of functioning in the home, work, social, or educational setting (Langlois et al., 2006; Thurman et al., 1999). TBI can have significant social and economic ramifications. There are an estimated 5.3 million Americans today that live with brain injury-related disabilities. The loss of productivity, as well as direct and indirect medical costs, totaled an estimated $60 billion in the U.S. in 2000 (Finkelstein et al., 2006). Almost 15% of persons employed full-time before a head injury will not have returned to work 4 years later. The unemployment rate rises to 69% for survivors of moderate to severe head injury. According to Corrigan et al. (2004), at least 40% of patients who were hospitalized as a result of TBI have one or more unmet neuropsychological needs at 1 year postinjury. Needs range from cognitive difficulties (such as memory and problem-solving deficits) to emotional difficulties (such as irritability and inability to cope with stress) to difficulties relating to performing job tasks successfully (Corrigan et al., 2004). The severity and persistence of the neuropsychological deficits following TBI correlate with the severity of the injury, and injury-related sequelae that follow after the injury. These injury-related sequelae include brain swelling, anoxia, autoregulating and metabolic problems, the development of posttraumatic seizures, posttraumatic hydrocephalus, and other complications. Neuropsychological assessment has been a helpful clinical tool in order to provide patients and their families with information regarding the effects of the injury on the patient’s abilities. It involves cognitive assessment of attention skills, memory and learning, categorization skills, executive abilities, linguistic and communication abilities, emotional and psychological status, and personality characteristics. It involves the collaboration of a speech-language pathologist and a neuropsychologist to work together in order to assess the above different areas. Research has shown that initial performance on neuropsychological measures soon after the resolution of posttraumatic amnesia can be useful in predicting productivity levels at 1 year postinjury (Boake et al., 2001). In addition, Atchison et al. (2003) reported that neuropsychological performance at 1 year postinjury was a predictor of productivity levels as measured concurrently with neuropsychological performance. It is clear among professionals working with patients who sustained TBI that the interaction between cognitive outcomes and personality changes plays a significant role in the outcome of the rehabilitation process and the patient’s ability to return to productive living after rehabilitation. Therefore, neuropsychological rehabilitation after TBI encompasses cognitive, behavioral, and emotional objectives, and it is optimally recommended to begin during hospitalization in order to start the long road to recovery (National Institute of Neurological Disorders and Stroke, 1989). Intensive neuropsychological rehabilitation continues after the head injured survivor is medically stable and before educational and vocational placement is attempted. The ultimate goal of brain injury rehabilitation is to assist the patient in the transition back to his or her original work (or educational setting), or to alternative settings based on his or her abilities. The goals of rehabilitation change as the patient’s needs change along the recovery process and continuum of care. The purpose of this chapter is to provide a general description of models of neuropsychological ­ rehabilitation, ­discuss the continuum of care following TBI, and discuss how neuropsychological

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goals change along the rehabilitation continuum. The chapter will conclude with a discussion of psychosocial and emotional support for TBI patients and their families.

5.2 The Continuum of Care and Rehabilitation after TBI The continuum of care for the patient with significant TBI typically begins with emergency trauma care and the neurological intensive care unit. The focus of the trauma care is to render the patient medically stable and reduce further complications from the injury. During this phase intracranial pressure, brain swelling, seizure activity, and the patient’s level of consciousness are closely monitored. Once the patient is medically stable and demonstrates improvements in consciousness, he or she is transferred to acute hospital rehabilitation for inpatient rehabilitation. During this phase, the patient receives cognitive/linguistic therapy, physical therapy, occupational therapy, and psychological services as deemed necessary. The length of inpatient rehabilitation varies from patient to patient, and it can range from a few days to 3 to 4 weeks. Discharge from acute rehabilitation does not imply that the patient has returned to preinjury levels of functioning. While in many cases the patient may be able to perform some basic activities of daily living (such as self-care tasks) independently or with some supervision, most patients will continue to experience persistent neuropsychological problems. In fact, if the patient has sustained significant trauma to require inpatient rehabilitation, then more than likely he will continue to have persistent problems in several areas, such as executive functioning, memory, attention, categorization, abstract reasoning, and self-awareness. Postacute rehabilitation follows inpatient acute rehabilitation. This can take the form of residential comprehensive treatment programs, day programs, or outpatient treatment. Typically, the day treatment and residential programs provide intensive treatment. The patient may have up to 4 to 6 hours of treatment each day that includes cognitive/linguistic treatment, occupational therapy, physical therapy, counseling services, therapeutic recreation, vocational treatment, and educational services. In the day treatment model, the patient returns to his home after the therapies are over at the end of the day. The residential treatment programs offer supervised residential accommodations. The level of assistance and supervision during activities of daily living (such as doing the laundry, meal preparation) and during recreational activities decreases as the patient improves and demonstrates readiness to return to his home environment. This additional dimension in the rehabilitation process ensures a higher probability of success in community reintegration. One of the many benefits of the day treatment and residential programs is the collaboration among professionals. Typically, patient progress is discussed in weekly or biweekly team meetings by the professionals who are involved in the patient’s care. Ideally, a consulting physiatrist (physician specializing in rehabilitation medicine) monitors the patient’s progress in all areas to ensure that the patient’s and family’s goals are met. Issues such as pain, substance abuse, depression, and behavioral problems, along with the cognitive and physical complications resulting from the injury, are monitored by the entire team. The length of residential or day treatment rehabilitation can very from 1 to 12 weeks (or more), depending on the severity of the injury and the length of treatment authorized by the patient’s insurance plan.

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Comprehensive day treatment and residential rehabilitation have been shown to be effective in improving functional performance in patients with TBI (Constantinidou et al., 2005; Malec, 2001). Another type of postacute rehabilitation is outpatient rehabilitation. Traditionally outpatient rehabilitation incorporates speech-language pathology (for speech, cognitive/linguistic deficits), physical therapy, and occupational therapy. The patient receives each of these services two or three times per week. The patient does not receive the same amount or variety of treatment services as in residential/day treatment programs. In addition, this model is typically not conducive to interdisciplinary collaboration, as in most cases there are no systematic interdisciplinary team meetings to coordinate services. As the patient begins to become aware of his or her disability, psychological services are not always readily available (as they are not built to be part of the patient’s weekly program) and valuable time may elapse until the emotional aspects of the injury are identified and managed by the physiatrist or primary care physician.

5.3 Neuropsychological Rehabilitation across the Continuum of Care During the acute phases of the injury, the goal of medical care is to render the patient medically stable. The Glasgow Coma Scale (GCS) is used widely by emergency personnel to classify injury severity (Jennett and Bond, 1975). The GCS assesses three aspects of wakefulness: (1) stimulus required to induce eye opening, (2) the best motor response, and (3) the best verbal response. The total scale score is 15 points. Patients who score 13 or higher on the GCS are classified as having a mild brain injury or concussion. Scores between 9 and 12 are an indication of a moderate concussion. Below 8 points indicates the presence of coma and the injury is classified as severe (Levin et al., 1982). A common neuropsychological deficit during the acute phase after the injury is posttraumatic amnesia (PTA). PTA includes the period of retrograde amnesia (RA) and the period of anterograde amnesia (AA). The onset of RA is the last memory remembered prior to the injury; the end of AA is the point of complete return to continuous memory after the injury. The Galveston Orientation and Amnesia Test (GOAT) by Levin et al. (1979) is used to assess a patient’s orientation during the acute and subacute stages. It can be used several times during the day until recovery of orientation and PTA resolution are demonstrated (Levin et al., 1982). The length of PTA is a useful predictor of outcome soon after and at 1 year postinjury. The long periods of PTA (i.e., PTA lasting for days) are correlated with poorer outcome, greater degree of disability, and need for supervision after the injury (Brown et al., 2005; McMillan et al., 1996). PTA lengths of greater than an hour signal a moderate concussion, whereas lengths that exceed 24 hours indicate a severe concussion. During this period of PTA, the patient is disoriented to person, time, and place. The patient may not know why he is in the hospital, and despite repeated explanations, he or she is unable to retain this information. It is recommended that formal neuropsychological testing and certain types of intense restorative cognitive therapy not be initiated until after PTA is resolved and continuous memory is established (Cicerone et al., 2000, 2005).

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Recovery from TBI follows a predictable pattern. The Rancho Los Amigos (RLA) (Hagen et al., 1979) scale documents those acute stages (See Appendix A at the end of the book for the RLA scale). The scale consists of eight levels from no response (Level I) to purposeful, appropriate responses (Level VIII). Level VI signifies the resolution of PTA, and formal testing and more intense systematic cognitive retraining can begin. It should be mentioned that some patients never reach Level VIII. Residual cognitive deficits as well as depression may be evident at the final stages of recovery (Levels VII and VIII). Patients vary in the rate by which they move from one RLA stage to the next. A patient with a severe TBI may remain in a coma for several days, whereas a patient with a mild injury may be at Level IV (agitated and confused) by the time he arrives at the emergency room. Even though plateaus may occur at any given point on the recovery continuum, they occur more frequently at Levels II (persistent vegetative stage) and VII (automatic, appropriate response). Appendix 5.1 presents the eight stages of recovery. The patient may be transferred to the rehabilitation floor to begin the (acute) rehabilitation process once medically more stable. The patient may still be inconsistent in his responses (RLA III), disoriented and confused at that time (RLA IV). Neuropsychological rehabilitation focuses on establishing consistent responses to stimuli, improving the patient’s attention for basic tasks such as eating, and facilitating basic communication among family members, staff, and the patient. As the patient’s orientation improves and PTA resolves (RLA VI or higher), then more systematic treatment can begin. Typically the patient will undergo formal assessment for his neuropsychological abilities by the clinical psychologist or neuropsychologist and the speech-language pathologist. The two professionals complement each other in their areas of expertise. As the patient moves from the acute phase to the more chronic phase of TBI, the residual cognitive, behavioral, and emotional effects of the injury become more evident. Typically, acute rehabilitation focuses on weekly goals. Therapy sessions last for about 30 minutes because the patient fatigues easily. The patient can demonstrate rapid recovery as he progresses through the early acute stages of the injury. As he becomes more oriented, his physical abilities improve and he learns to walk again, eat, use the bathroom, and perform other basic activities of daily living. During postacute rehabilitation, treatment can be more intense. The patient’s stamina improves and therapy sessions can increase in length from 30 to 50 minutes. However, fatigue continues to be a factor that may interfere with progress. In addition, medications to control pain or seizures can also exacerbate symptoms of fatigue. Neuropsychological rehabilitation during this phase is systematic and typically targets specific areas of cognition and psychosocial and psychological issues. Following is a presentation of models of cognitive rehabilitation followed by a discussion of specific cognitive domains treated during cognitive rehabilitation: attention, memory, categorization, language, and executive functioning.

5.3.1  Models of Cognitive Rehabilitation Research has documented that cognitive and behavioral problems can interfere with the patient’s ability to return to productive living. Cognitive retraining falls under

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two primary categories: restorative and compensatory. Restorative rehabilitation is based on neuroanatomical and neurophysiological models of learning. These models suggest that neuronal growth and synaptogenesis result directly from repeated exposure and repetition of stimulation through experience (Squire, 1987). Consequently, cognitive training could potentially lead to the development of new neuronal circuits, which could cause reorganization of partially damaged systems, reduce cognitive impairment, and improve functional ability. It is possible that if rehabilitation is withdrawn too early, then the functional reorganization would not have an opportunity to occur; thus, treatment effects will not be permanent. The compensatory rehabilitation approach operates under the assumption that certain functions cannot be recovered or restored completely. Therefore, the patient needs to use certain strategies to improve functional performance without relying on the restoration of the damaged neurocognitive systems (Coelho et al., 1996). The restorative and compensatory approaches could be used together in rehabilitation in order to maximize performance. For instance, assisting the patient to develop self-awareness regarding his or her cognitive needs by the use of systematic strategies could have a restorative effect on planning and deliberate cognitive processing abilities (Coelho et al., 1996). There are several comprehensive approaches to cognitive rehabilitation, including works by Ben-Yishay, Prigatano, and others that focus on holistic rehabilitation (Ben-Yishay et al., 1987; Caetano and Christensen 1997; Christensen and Caetano, 1999; Prigatano and Ben-Yishay, 1999; Prigatano, 1999), as well as other approaches (Ashley et al., 2004; Constantinidou et al., 2004; Malec, 1996; Mateer and Raskin, 1999; Sohlberg and Mateer, 2001). These approaches involve developing hierarchical treatment strategies for the treatment of basic and complex cognitive systems, and also helping the patient develop self-awareness and acceptance of changed abilities.

5.3.2  Treatment of Specific Cognitive Domains 5.3.2.1 Attention Attention is considered a hierarchical process, ranging from the basic ability to be alert and process basic sensory information (such as noises in the environment, people, painful stimuli, etc.) to more complex processes, such as keeping track of more than one stimulus or task at a time (e.g., divided attention or multitasking). Following TBI, increased attention requirements result in fatigue and errors much more so than in the noninjured population. Patients may experience inability to maintain attention in the presence of distractors (e.g., vigilance), as well as difficulty in shifting between targets. Clinical assessment will often reveal a pattern of functional inconsistencies. Internal and external conditions such as noise, fatigue, pain, distractions, and excessive demands can result in attention breakdowns (Montgomery, 1995; Constantinidou et al., 2004). Cognitive rehabilitation of attentional processes attempts to recognize and control potentially adverse personal and environmental conditions and ultimately trains patients to become more resistive to distracting situations (Constantinidou et al., 2004). TBI patients could be trained to recognize particular situations that may affect their performance, and learn to seek out environments that are more

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conducive to productivity. In addition to awareness training, another component of attention training is rehearsal. It has been observed that with practice, the effort and attentional control required for a task will decrease as the task becomes more automatic and efficient (Montgomery, 1995). Therefore, it is important to train a patient to perform functional tasks, rehearse them in order to improve accuracy and efficiency, and decrease the amount of mental effort. Attention retraining should also challenge the individual by systematically increasing the level of distractors to simulate real-life demands. In their Attention Process Training (APT) program, a component of a hierarchically organized process-specific approach to cognitive retraining, Sohlberg and Mateer (1987) begin with sustained attention tasks. The APT program progresses hierarchically from sustained attention to selective, alternating, and divided attention activities. Attention training has reportedly resulted in improved memory performance in patients with TBI (Sohlberg and Mateer, 1987). Refer to Sohlberg and Mateer (1987, 1989, 2001) for further information regarding this training program. 5.3.2.2 Memory The concepts of learning and memory are intimately related. While learning is the process of acquiring new information, memory is the consequence of learning, and refers to the persistence of learning in a state that can be revealed at a later time (Squire, 1987). Memory has an essential role in the acquisition of new information and problem solving. It allows for progression through various levels of problem solving, and is essential for generating responses and modifying responses following feedback. Given the fact that memory is an integral part of most daily activities, children learn how to develop strategies to reduce the demands on memory. One strategy reported by Piaget (1969) is the ability to organize incoming information. Overall memory performance depends not only on general memory abilities, but also on the highly developed skills for encoding and organization (Squire, 1987). This ability is often affected in TBI (Levin and Goldstein, 1986). Although the patient with a closed head injury (CHI) may have difficulty organizing incoming information, research has shown that he or she is able to learn how to implement strategies or follow external organizational schemes (Constantinidou & Kreimer, 2004; Crosson et al., 1993; Goldstein et al., 1990). Organizing the incoming information and allocating resources to that task (such as attention) is considered the function of the central executive system of working memory. 5.3.2.2.1 Working Memory Baddeley and Hitch in 1974 proposed a specific model of memory structure referred to as working memory. The model assumes “a central executive system that coordinates a number of subsidiary slave systems of which the most widely explored are the articulatory loop, which stores and manipulates phonological and verbal information, and the visuospatial sketchpad, which is involved in visuospatial imagery” (Baddeley et al., 1987, p. 137). Working memory can be described as a workspace or memory buffer zone in which information is maintained while it is processed (Baddeley, 1992; Baddeley et al., 1987; Squire, 1987). It encompasses the storage of information required for the execution of cognitive tasks such as reasoning­,

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c­ omprehension, learning, and problem solving (Baddeley et al., 1987). Conscious attention and encoding (e.g., rehearsal and other strategies) are ­implemented by the ­executive system. Consequently, damage to that system can affect the working memory mechanisms. Working memory is active during the acquisition of new information. In addition, it is activated during the retrieval of information from long-term memory. An example would be trying to recall the names of state capitals. The executive system will monitor for accuracy of the information and will implement strategies that will access the organization and categorization systems. Consolidation refers to the process by which information is transferred into permanent, long-term memory storage. During the transferring process, the new information is integrated with the individual’s existing cognitive/linguistic framework (Sohlberg and Mateer, 1989; Squire, 1987). However, while consolidation is taking place, there may be some gradual loss of information (Kupfermann, 1991) until memories become permanent and resistant to change (Squire, 1987). Research suggests that patients with moderate to severe CHI are able to learn new information, but at a decreased rate compared to normal subjects. Furthermore, their ability to recognize information is superior to their free recall skills (Constantinidou et al., 1996; Constantinidou, 1999; Spikman et al., 1995). While, as a group, CHI subjects tend to have a more passive learning style (due to executive problems), subgroups of patients who apply active memory strategies have been reported. These patient subgroups who implement active strategies tend to have improved working memory abilities. Consequently, one of the goals of memory retraining is to facilitate the use of internal organization strategies in order to teach the patient how to organize and categorize incoming information to facilitate learning and subsequent recall. 5.3.2.2.2 Long-Term Memory Some information processed during working memory undergoes the process known as consolidation, which results in it being stored in various long-term retention systems. Our current understanding of long-term memory divisions is based on significant contributions by Tulving (1985) and Squire (1992). The different routes to storage together with the distinctions among the kinds of information permanently stored define the various hierarchical subsystems of long-term memory. Based on these models, long-term memory stores can be divided further into declarative and nondeclarative long-term memories. Declarative memory (explicit memory) as adopted by many cognitive neuroscientists (e.g., Squire and Zola-Morgan, 1991; Schacter and Tulving, 1994) is information that can be consciously declared to have been learned or experienced, whereas nondeclarative memory (implicit memory) is information whose learning is only reflected by changes in future behavior as a result of the prior experience, without conscious remembrance. Declarative memory is further subdivided into the two prominent concepts of semantic vs. episodic memory. Semantic memory refers to the knowledge of word meanings and concepts of things that were once taught. Episodic memory, on the other hand, refers to recollection of time-specific events relating to a person’s autobiographical experiences that can eventually contribute to his semantic knowledge (Constantinidou et al., 2004).

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Nondeclarative memory does not require conscious effort. The different types of nondeclarative memory are • Procedural memory — Referring to the acquisition of perceptual-motor skills (e.g., riding a bike) • Cognitive skills — Learning of rules and sequences; not memorizing the rules but applying them, such as in the game checkers • Priming — Improved retrieval of a new stimulus (such as words or pictures), even though the person is unable to recall being exposed to the materials. This type of learning is explored during commercial advertisement. • Classical conditioning, as in animal studies Memory strategies that reportedly are successful with other populations are not always appropriate in TBI. For instance, visual imagery training with left hemisphere damage patients resulting in a specific verbal memory deficit may prove to be a useful memory aid (Levin, 1992). On the other hand, in severe CHI, visual imagery was not proven particularly useful — probably due to the increased mental effort it requires (Crosson and Buenning, 1984; Crovitz et al., 1979; Richardson, 1979; Richardson and Barry, 1985). Declarative memory is typically more affected in TBI than procedural memory. Therefore, teaching domain-specific memory tasks as they pertain to a given job may be successful (Glisky, 1992; Parente and Anderson-Parente, 1989). However, the application of that knowledge to novel situations and problems requires declarative knowledge of strategies as well as intact executive abilities (Malec, 1996). These aspects of cognition are impaired as a result of brain injury. A hierarchical perceptual cognitive retraining program designed to enhance both storage and retrieval mechanisms has been shown to facilitate learning (Constantinidou et al., 2005). In addition, external memory strategies such as the implementation of a memory notebook (for extensive information on this approach, see Sohlberg and Mateer, 2001) or the use of a personal digital assistant (PDA) may be beneficial for everyday memory functions such as remembering important dates and appointments, provided that they are simple to use and are used consistently (Hart et al., 2004). 5.3.2.3 Categorization Categorization is a fundamental cognitive process, crucial to other cognitive skills, and hence could influence cognitive rehabilitation outcomes. Deficits in categorization could interfere with the successful execution of activities of daily living because categorization skills are integral to memory and learning of new information, and are essential processes for decision making and successful problem solving. Given the fundamental importance of categorization to all of intelligent behavior, it is surprising to observe the scarcity of investigation specific to the rehabilitation of classification behavior after TBI. This is in contrast to other domains such as attention and memory, for which a substantial body of work can be found. Researchers have investigated two domains of category behavior: (1) the (usually visual) recognition and categorization of common objects, and (2) the learning of novel categories.

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5.3.2.3.1 Common Object Recognition Much of the investigation into recognizing common objects has concerned the (static) structure of categorical knowledge in the brain, often referred to as semantic memory (described in the previous section). Deficits in this system due to brain injury often lead to dissociations in categorization ability as a function of stimulus type. For example, patients may not be able to categorize animate objects (such as animals) even though their ability to recognize artifacts remains unimpaired. There are two types of explanations of such dissociation. On the one hand, it is argued that semantic knowledge in the brain is organized into domain-specific systems; that is, systems for recognizing animals, plants, artifacts, and conspecifics occupy different anatomical regions, respectively (Caramazza and Shelton, 1998). Other explanations of the effects of brain injury adopt a property-based account of semantic memory, arguing that the observed dissociations result from the different distributions of functional vs. perceptual features across different category types; animals have more perceptual properties rather than functional, whereas artifacts can be described using more function features (Farah and McClelland, 1991). 5.3.2.3.2 Novel Category Learning When faced with learning to group novel objects or situations, people may recruit one of several systems specialized for this purpose (Ashby et al., 1998; Erickson and Kruschke, 1998). Mappings from object to category that can be described verbally, in terms of logical rules or hypotheses, utilize the left hemisphere language centers and executive (attention and short-term memory) processes of the frontal lobes. When the categories to be learned cannot be described in terms of simple verbalizable rules (as in the case of most categories in the real world), implicit processes are needed. Models of nonverbal category learning include those that assume individuals store examples of categories with their category label in memory and base future categorization decisions on similarities to those stored examples (e.g., Nosofsky, 1986). In these theories, similarity is governed by featural or property overlap, which may provide the foundation for a property-based organization of semantic memory for the highly learned categories of common objects. Others have argued that nonverbal categorization uses mechanisms similar to those of procedural learning underlying skilled motor performance, and is hence mediated by structures involved in motor learning, namely, the basal ganglia (Ashby et al., 1998). These structures may be more resistant to the effects of brain injury, so encouraging this implicit categorization system to take over when other areas are compromised could prove useful. What is known is that explicit memory (i.e., the conscious recollection of the learning event) is not necessary for category learning in some situations, as individuals with anterograde amnesia (due to hippocampal damage) can learn nonverbal category structures in the absence of recalling the learning experience (Knowlton and Squire, 1993). Research on the effects of TBI on categorization abilities is limited. Constantinidou and Kreimer (2004) conducted a preliminary study to determine the effects of TBI on simple object categorization and feature extraction. The results from that study suggest that moderate to severe traumatic brain injury seems to interfere with the ability to extract and use attributes in order to describe objects. Constantinidou et al. (2005) implemented a systematic hierarchical categorization training program

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in patients enrolled in postacute rehabilitation. Patients demonstrated significant improvement on categorization abilities and on functional outcome measures following the training, supporting the use of systematic restorative cognitive techniques in TBI rehabilitation. 5.3.2.4 Language and Communication Disorders Traumatic brain injury can result in focal damage to brain structures such as the medial temporal lobes and the frontal and parietal lobes, resulting in disruption of the attention, memory, and language systems. Furthermore, diffuse axonal injury observed in brain injury can result in generalized cognitive disruption that often affects complex linguistic abilities. Traditional aphasic syndromes (such as the ones observed after a focal lesion like a stroke) are not often associated with TBI, although aphasia may be present during the early stages of the recovery process. Word-finding and lexical retrieval deficits are the most common linguistic deficits associated with TBI and can persist up to at least a year postinjury (Crosson et al., 1993; Sarno, 1984). Difficulties in discourse organization and other extralinguistic difficulties are a result of cognitive nonlinguistic processes that support language. Language is inherent in most cognitive activities and is used to assess and treat other cognitive processes. Consequently, damage, dysfunction, or disorganization of attention, memory, categorization, and executive functions can result in linguistic breakdown that can affect spoken and written language. For this reason, language is an integral part of cognitive rehabilitation goals even though the goals are not developed to treat language specifically. For instance, the patient may be asked to produce three solutions to a daily problem verbally in order to improve his problem-solving abilities. Discourse impairments have been observed in adults with TBI. They are usually manifested as changes in extralinguistic and pragmatic abilities, such as turn taking, topic organization, topic maintenance, and social use of language. The changes stem from a reduction in abstract cognitive abilities and executive difficulties, and difficulty in interpreting verbal and nonverbal cues (see psychosocial issues in this chapter). Individual and group therapy is helpful in treating discourse problems after TBI. Critical to the improvement of discourse abilities is the improvement in selfawareness (see later in this chapter). The reader is referred to Fromkin and Rodman (1992) and Benson and Ardilla (1996) for further information on the major brain areas involved in language functions, their processing characteristics, and the effects of brain lesions on language functions. In addition to the language deficits, patients after TBI may experience problems with the motor aspects of communication, that is, the actual production of speech. The cluster of motor speech disorders most often associated with TBI is the dysarthrias. These disorders are caused by actual damage to the neuromuscular control mechanism (due to damage to the central nervous system or peripheral nerves) relating to the production of speech. This interruption or damage to the neuromuscular control system can cause weakness, spasticity, or incoordination of the muscles, and can affect a variety of processes, such as respiration (or breathing), phonation, voice quality, and articulation or speech. Speech-language pathologists are the clinicians

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on the rehabilitation team responsible for the diagnosis and treatment of these disorders. While patients can show rapid improvement during the early stages of the injury, some may have severe problems that persist for years postinjury. Treatment for motor speech disorders can focus on specific tasks to improve neuromuscular control and may also incorporate augmentative communication devices in patients with more persistent severe problems. Refer to Yorkston and Kennedy (1999) and to the Web site of the American Speech-Language Hearing Association (www.asha. org) for more information. 5.3.2.5 Executive Abilities Governing the bulk of cognitive processing, at least that which is consciously available, is the executive system. It has been referred to as the CEO of all conscious cognitive processes. This system is largely responsible for activating a dynamic mental representation of the current situation, ensuring that important relevant features of that situation are amplified (Shimamura, 1995) and selecting the most appropriate response from among a set of competing alternatives. To work properly, the executive network must be flexible enough to switch attention to different aspects of the situation or change response selection strategies as environmental events change. This system is limited in that there is difficulty in attending to several mental events simultaneously. This capacity varies among and within individuals at different times. Factors such as age, mood, fatigue, and arousal contribute significantly to an individual’s effectiveness with controlled operations (Eimer, 1997; Montgomery, 1995). The dynamic frontal lobes subserve the executive system. These areas and their interconnections are frequently affected by TBI (Gazzaniga et al., 1998; Sohlberg and Mateer, 2001). Patients with frontal lobe lesions may often exhibit problems that center around the following areas: • Perseveration, or a difficulty in changing behavior in the short run (or lack of cognitive flexibility). This can manifest itself as getting stuck on one type of response and difficulty in shifting responses or generating solutions (rigid narrow thinking) and solving problems. • Organization of pertinent information. Selecting important information in order to categorize, organize, and sequence information relevant for attention and memory processes described above. • Initiation of purposeful behavior. Problems may be manifested as difficulty to begin a task in a timely manner and self-monitoring in order for the task to be completed on time. A patient with executive problems in initiation may be incorrectly classified as withdrawn, depressed, or lacking motivation. • Maintaining purposeful behavior. It is important not only to begin a task, but also to continue the task until it is completed. As mentioned previously, this is an important component of working memory. • Response inhibition. The frontal lobe has interconnections with the limbic system, which is responsible for basic human drive. The frontal lobe allows humans to act in a socially responsible way despite internal human drives. Damage can result in impulsivity and inappropriate behavior. This often causes a great deal of distress to family members of patients with TBI.

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• Self-awareness. This is a metacognitive skill that is very important for rehabilitation success. The patient who has difficulty in this area may not be aware of his or her deficits, and subsequently may not see a need for rehabilitation or implementation of strategies discussed during therapy. Another aspect of awareness is being able to understand the impact of one’s behavior on others, and also to be able to take another person’s perspective. Improvement of selfawareness has been linked to rehabilitation success (Prigatano, 1999). Oftentimes executive functioning problems are not observed in the structured therapeutic setting because the clinician is in charge of planning and monitoring the session and all related activities. Therefore, executive functions need to be assessed carefully in the clinic setting and also during activities of daily living. The treatment plan needs to incorporate self-awareness training (see below under psychosocial training), environmental management, task analyses, time management skills, selfmonitoring strategies, and metacognitive techniques (Cicerone and Giacino, 1992; Prigatano, 1999; Sohlberg and Mateer, 2001). 5.3.2.6 Therapy Effectiveness There is a growing body of research supporting the effectiveness of neuropsychological rehabilitation following TBI. Studies have demonstrated that cognitive rehabilitation is helpful and effective, especially after the patient is oriented and able to remember day-to-day information. Results from efficacy research for specific cognitive deficits, such as categorization, attention, memory, executive functions, and social skills, following brain injury are in favor of treatment (see the following for reviews and for descriptions of specific treatment techniques: Coelho et al., 1996; Cicerone et al., 2000, 2005; Constantinidou et al., 2005; Cavaco et al., 2005). However, research still needs to identify standardized cognitive remediation approaches for effective TBI rehabilitation. As outcome research in the area of cognitive rehabilitation following TBI continues to grow, researchers need to carefully match their dependent and independent variables. That is, the research protocol needs to use sensitive measures to gauge changes that directly relate to the hypothesis at hand and to the changes (or behaviors) that the study intends to measure. Furthermore, both functional measures and formal neuropsychological measures that are not only sensitive, but also have been validated with the TBI population, need to be incorporated to measure changes as a result of specific treatment approaches or methods (Constantinidou et al., 2004).

5.3.3  Community and Vocational Reintegration Given the fact that the ultimate objective of neuropsychological rehabilitation is to maximize the patient’s independence in the home, vocational, and social arenas, proper steps for vocational and community reintegration are important factors for successful neuropsychological rehabilitation. The success of reintegration is dependent upon a variety of factors. These include the severity of the injury, quality of rehabilitation, family support, community support, patient motivation, preinjury personality characteristics, the patient’s coping strategies, employment history, and employer

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support­. For example, research demonstrates that patients who were employed prior to the injury will have a higher probability of returning to employment after the injury as compared to those patients who were unemployed (Keyser-Marcus et al., 2002). Community reintegration incorporates hands-on training in performing daily activities in the home and in the community. It is facilitated during day treatment or residential rehabilitation. Research has documented that systematic reintegration efforts during rehabilitation are successful in helping patients lead more meaningful and satisfied lives. Outcomes research in this area supports the systematic efforts of community integration following TBI (Dawson et al., 2005; Malec, 2001). Community and therapeutic recreation can incorporate outings such as shopping at a local grocery store, going to a restaurant, shopping for clothes, and other daily activities. Trained rehabilitation staff are able to identify difficulties during those activities and subsequently develop adaptations to help the patient be more successful. For instance, if the patient becomes easily overstimulated and agitated during busy environments due to sensory integration problems, slow processing times, divided attention, and memory deficits, then it will be recommended to the patient to do his weekly grocery shopping during low peak times in order to reduce the effects of environmental noise on his cognitive abilities. Systematic community reintegration offers opportunities to assess whether the patient is able to implement skills learned during neuropsychological therapy. For example, during a trip to the local grocery store the clinicians can ask questions relating to different cognitive areas, such as the following: Organization/categorization/memory: Is the patient able to use rehearsal and organization strategies to remember how to find his way around the grocery store? Does he use a grocery list in order to remember what he needs to buy, or is he trying to remember his grocery list from memory and unsuccessfully? Is his grocery list organized according to the types of items (i.e., produce, dairy, canned goods, etc.)? Does he visit each section of the store and buy all items from that section before he proceeds to the next section, or is he haphazardly moving around the store? Executive abilities and psychosocial behavior: What types of problem-solving strategies does the patient implement when he is unable to locate an item or when he encounters a difficulty (e.g., needs to reach an item stored on a high shelf)? What is his interaction style with store clerks, community dwellers, or staff during these outings? How is his overall behavior? Patient safety is of outmost importance during these activities, and impaired judgment may interfere with making safe decisions. Well-trained staff are able to observe these important variables, and information from the community outings is documented and shared with other team members responsible for the patient’s care. As the patient continues to demonstrate improvement, steps can take place as part of the rehabilitation process to assist in gradual reintegration. In many cases, patients with significant head trauma may not be able to be completely independent and may require partial or full supervision during community outings. Functional outcome measures such as the Mayo Portland Adaptability Inventory, the ­Community

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I­ ntegration Questionnaire, and others have been used in clinical research successfully in order to measure improvement in patients after comprehensive postacute rehabilitation (Constantinidou et al., 2005; Hart et al., 2005; Malec, 2001). Vocational rehabilitation is an important part of neuropsychological rehabilitation after TBI (Prigatano, 1999; Malec and Moessner, 2006). Ideally, a rehabilitation counselor should be involved with the patient early in the rehabilitation process. However, systematic vocational rehabilitation takes place once the acute deficits resulting from the injury have been resolved or can be managed adequately. Refer to Ashley et al. (2004) for a more detailed discussion on this topic. Outcomes research on different models of vocational reintegration supports the use of vocational training after TBI (Malec and Moessner, 2006; Malec et al., 2000; Buffington and Malec, 1997). Vocational reintegration does not imply that the patient will return to his or her preinjury job. In many cases, the patient will be unable to return to his exact preinjury job responsibilities (Wehman et al., 2005) due to a multitude of factors, including the severity of the injury. An important aspect of vocational and cognitive retraining is to match the patient’s skills and interests with potential types of work. Vocational rehabilitation counselors can help with patient training for a specific work setting. In addition, other therapies can implement tasks that are relevant to the patient’s work or social needs. For example, if the patient needs to memorize certain procedures for his work, cognitive/linguistic therapy can help the patient implement those procedures via the use of internal strategies and compensatory techniques. Vocational reintegration is a gradual process that begins in the rehabilitation setting and eventually moves to the work setting during supervised work trials (Prigatano, 1999). During the supervised job trial, the patient can be shadowed in order to identify potential problems that can be addressed in therapy, or certain environmental modifications that can be done in order to facilitate the patient’s success in the work setting. For example, if the patient’s work setting is noisy and the patient is easily distracted, it may be recommended that the patient works in a more quiet room where he will not be subject to noise and distractions. As the patient begins to gradually spend more time at work, the amount of therapy decreases and therapies shift to a more consulting, rather than rehabilitative, role. Most states have departments specializing in vocational rehabilitation. However, there is great variability among them regarding their ability to meet the special needs facing a patient with TBI. Consequently, there is inconsistency among states regarding the provision of appropriate services and resources for patients with TBI.

5.4 Psychological and Psychosocial Support Following TBI The injury to the brain not only affects cognitive abilities, but may also affect behavior and alter personality characteristics. These changes in personality and behavior often cause distress to the patient and the family and are true barriers to social, vocational, and educational reintegration. The most common resulting behavioral and personality changes following TBI are anger, disinhibition, impulsivity, socially inappropriate behavior, and lack of initiation.

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As the patient recovers from TBI, it is expected that he or she may experience behavioral problems. It is further expected that during the early stages of recovery, as the patient emerges from coma and regains consciousness (RLA III to V), the patient will demonstrate a combination of behavioral problems as part of the recovery process. During these early stages of recovery, the patient may cry uncontrollably, yell, kick, hit, and swear without external provocation (Sohlberg and Mateer, 2001; Persel and Persel, 2004). The behavioral problems during that stage stem from the dynamic neurochemical changes in the brain that result in confusion, disorientation, and emotional dyscontrol. In addition, in many cases patients experience significant pain due to other injuries, and this, along with the above problems, exacerbates these behaviors. During this early, acute phase of recovery, great emphasis is placed on environmental control and external strategies (i.e., cueing, checklists, etc.). As the patient continues to recover, he gains more control over his own behavior and the above problems typically subside. However, in many cases, the patient may continue to exhibit significant difficulties, especially during changes in routine, and in response to cognitive limitations that may result in the patient feeling overwhelmed. In fact, Corrigan et al. (2004) reported that over 40% of patients hospitalized with TBI had at least one unmet need 1 year postinjury. Cognitive problems (such as memory and problem-solving difficulties) and difficulty managing stress and controlling temper were the two frequently reported needs. When behavioral changes persist beyond the acute phase, they are considered maladaptive. Specific behavioral treatment techniques have been proposed in the literature in order to increase patient awareness of his behaviors, reduce maladaptive behaviors, and increase desirable behaviors (Prigatano, 1999).

5.4.1  Communication and Environmental Modification Strategies While the ultimate goal of psychological rehabilitation is to help the patient regulate his own behavior, environmental management is an important component to managing undesirable behaviors. The following recommendations are designed to create positive communication and a learning environment for a person with TBI: • Speak quietly and avoid demonstrating strong emotions. It is challenging for caregivers, friends, and therapists to be calm and collected when a patient is agitated and at times dangerous. However, remaining calm while the patient is agitated can help redirect energies to more productive behavior. This is especially important in cases where acting out is a gesture to seek attention from the caregiver/therapist; thus, an emotional reaction by the caregiver can result in strengthening the undesirable behavior. • Keep instructions and communication simple. Patients with TBI may experience difficulty processing large amounts of information. In addition, the speed by which they process information is slower. Consequently, it is important to use direct language (as compared to implied messages) and to break up the information into smaller pieces. Writing the information down or using pictures is also helpful because the patient will not have to rely on his impaired memory abilities to remember (Constantinidou et al., 1996).

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• Reduce environmental distraction and keep the environment simple. Patients with TBI oftentimes have difficulty shifting their attention between different stimuli or dividing their attention between two tasks (Constantinidou et al., 2004; Sohlberg and Mateer, 2001). In order to avoid overstimulation, reduce the number of auditory, visual, and other external stimuli. This is particularly important if the patient needs to focus on a given task. For example, if the patient needs to read an important legal document, then there should be no distractions (such as open windows with noise, radio or television playing, or people coming in and out of the room) so he can focus his energies to the task at hand. • Selectively ignoring inappropriate behavior and redirecting. As mentioned earlier, oftentimes inappropriate behavior (swearing, physically aggressive or sexually inappropriate gestures) can be repeated if the patient has received attention for it in the past. In order to extinguish inappropriate behavior, it has to be systematically ignored. Even partial or inconsistent reinforcement (i.e., responding to it some of the time) may result in strengthening the inappropriate behavior. Consequently, while this may be a good approach, it needs to be implemented consistently by the environment. Identifying signs of frustration before the behavior escalates and redirecting the patient to a new activity may be more successful than allowing the undesirable behavior to escalate. Redirection will be especially helpful if the undesirable behavior stems from lack of monitoring and is due to perseveration (Sohlberg and Mateer, 2001). In addition, setting goals and reinforcing positive behavior, such as expressing frustration or needs in socially appropriate ways, can be effective (Persel and Persel, 2004). • Providing choices. When people have the opportunity to make a choice, this may reduce undesirable behaviors (Persel and Persel, 2004). TBI often takes away the patient’s ability to make choices. The patient can be given choices for what activities to do, what to eat, and what tasks to work in therapy provided that any of the patient’s selections is appropriate and can be honored.

5.4.2  Applied Behavioral Analysis Applied behavioral analysis (ABA) is also known as behavioral modification, behavioral management, operant conditioning, or Skinnerian psychology. The principles of ABA grew out of theories investigating the interaction between the environment and human behavior (or learning). The ABCs of behavioral analysis (i.e., antecedent, behavior, and consequence) are based on the premise that each behavior has an antecedent (an external factor that triggers the behavior) and a consequence (events or reactions to the behavior that affect the likelihood of the behavior recurring). A key ingredient to ABA techniques is to specify and quantify the antecedent events, the specific target behaviors that are undesirable and need modification, and the consequence. The following case example illustrates how the ABC described above can influence behavior. Mr. Patient C.X. is a 45-year-old patient who sustained a moderate TBI. At 3 months postinjury he continues to have difficulty with

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p­ rocessing information. His family complains that often during dinner he becomes aggressive. Careful analysis indicates that during these times there are multiple sources of noise in the home, such as the TV or radio and several people talking at the same time (antecedents), which can result in the patient feeling overstimulated and, as a result, talking louder and eventually yelling out loud and banging his fist on the kitchen table (negative behavior). Consequently, the family may react by becoming quiet and directing their attention to the patient in order to help him calm down, which in turn results in positive reinforcement of the undesirable behavior (consequence). In designing a behavioral management program, the clinician needs to analyze the situations carefully and implement appropriate targets and behavior-shaping techniques. Refer to Persel and Persel (2004) for more information and case presentations and to the Behavioral Analysts Certification Board (www.bacb.com) for more information regarding ABA.

5.4.3  Metacognitive Self-Regulatory Strategies and Self-Awareness Environmental modification and structured behavioral modification techniques are very important during the acute stages of recovery after TBI. However, as the patient enters the more chronic stages after the injury, the goal is to reduce dependence on external factors and improve self-awareness and self-control. Sohlberg and Mateer (2001) suggest that most self-regulatory strategies involve the patient being more aware. For example, the WSTC technique used by Lawson and Rice (1989) teaches the person to ask the following: What am I supposed to be doing? Select a strategy. Try the strategy. Check the strategy. Initially, this type of training should be incorporated in structured therapeutic settings (both individual and group sessions), but as the patient is able to handle less structure and more demanding environments, then it can moved into the community (Prigatano, 1999). This type of training is conducive for anger management, assertiveness training, stress management, and executive dysfunction. Sohlberg and Mateer (2001) and Prigatano (1999) provide more information on this topic. Researchers have demonstrated that developing awareness is a strong predictor to rehabilitation and future employment success (Prigatano, 1986, 1999, 2003). Prigatano (2003) suggested that self-awareness training begin early in rehabilitation. For instance, various therapists can ask the patient to predict performance on certain activities based on feedback from the therapist. These activities can serve as precursors to more systematic self-awareness training in rehabilitation. In addition, exercises to interpret others’ intentions and feelings might be helpful in developing perspectives on others’ feelings and facilitating critical thinking and judgment abilities. According to Prigatano (2003), Zeman (2001) introduced three vectors for human consciousness. Prigatano (2003) further defined the vectors to describe the different stages of consciousness and self-awareness encountered in TBI:

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Vector 1. Consciousness such as wakefulness. Impairment can lead to loss of consciousness and coma. Areas involved: upper brainstem, reticular activating system, and thalamus. Vector 2. Self-awareness of “me” and “now.” Impairment can lead to denial of deficits, lack of awareness, and poor rehabilitation outcomes. Areas involved: thalamus, anterior and posterior cingulate of the limbic system, and heteromodal cortex. Vector 3. Consciousness as a mental state of theory of “me” and “others” (theory of mind). Impairment can result in impaired perceptions of others and their intentions and, subsequently, in lack of judgment. This is the vector that is also implicated for delusions and schizophrenia. Areas involved include the areas listed under vector 2; however, the organization of those areas might be different.

5.4.4  Management of Psychological Outcomes of TBI In the past two decades it has become clear that psychological or emotional reactions to TBI are common and can have an effect on rehabilitation outcomes. The interaction between injury and preinjury personality characteristics and history of psychiatric disorders can contribute to the psychological effects of the injury. Consequently, thorough information regarding the patient’s preinjury psychological history is an important component to psychological assessment following TBI. The injury itself causes specific problems that can be erroneously perceived as psychiatric in nature. These include lack of awareness of deficits or anosagnosia (perceived as denial), lack of initiation (perceived as social withdrawal), fatigue and lower crying threshold (seen as depression), impulsivity or social disinhibition (seen as personality or conduct disorder), frustration, slowness in information processing, and lower anger threshold levels (perceived as anger and irritability associated with anxiety and depression) (Sohlberg and Mateer, 2001). Consequently, the psychological assessment following TBI needs to be conducted by a professional who is well trained on the neurological effects of TBI on behavior. Following a TBI, most patients will experience significant changes in their lifestyle. During rehabilitation, they are confronted with their limitations and their sense of loss of abilities and personal goals. It is not uncommon for patients during postacute rehabilitation to become depressed as they develop improved self-awareness and gain a deeper realization of their limitations and how those might affect their daily activities and their sense as a person. In fact, depression and anxiety are the most common emotional problems associated with TBI and are most common during the first 2 years postinjury (Jorge et al., 2004; Ownsworth and Fleming, 2005; Sohlberg and Mateer, 2001). Consequently, these emotional reactions to injury need to be addressed in a supportive treatment environment. Psychotherapy (delivered by professionals trained in TBI) is an important component to rehabilitation in order to help the patient gain a sense of control of oneself, and develop a sense of purpose and meaning after the injury. Self-awareness training and improvement of metacognitive skills such as self-initiation and self-regulation are typically incorporated in psychotherapeutic approaches. Research has demonstrated that patients with higher levels of self-awareness tend to improve psychosocially and exhibit more hope for

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the future than patients who have low levels of self-awareness (Ownsworth and Fleming, 2005). Various psychotherapeutic techniques have been implemented in patients with TBI with varying degress of success: traditional psychotherapy, cognitive-behavioral therapy, and behavioral therapy. Traditional psychotherapy centers on the therapeutic relationship in order to build support and facilitate the patient’s ability to make commitments to work, relationships, and his own treatment process (Prigatano, 1999). These models are influenced by the Jungian approach, but adapted to meet the needs of patients with TBI. Behavioral-cognitive techniques are built on the premise that beliefs (thoughts or cognitions) have a large impact on behaviors. Treatment focuses on helping the patient accept his current level of functioning and, at the same time, challenges his distorted thoughts, therefore fostering personal empowerment and self-sufficiency. The behavioral techniques focus on facilitating the patient to engage in activities (i.e., going to the movies, shopping, etc.) that are pleasurable and realistic given the current limitations in order to rediscover a sense of self (Sohlberg and Mateer, 2001). Behavioral techniques are often incorporated with psychotherapy and behavioral-cognitive approaches. Refer to Prigatano (1999), Prigatano and Ben-Yishay (1999), and Sohlberg and Mateer (2001) for more information on psychotherapeutic interventions.

5.4.5  Supporting Families One of the goals of this chapter is to help the reader develop an understanding of the magnitude of potential psychological and neuropsychological problems that can result from TBI, and to gain perspective on the rehabilitation process. Consequently, TBI affects not only the patient, but also his environment. At the very minimum, TBI disrupts the basic equilibrium or balance of the family unit. Family members not only have to reassign responsibilities and take on roles that were typically held by the injured patient, but also need to learn how to facilitate their loved one’s recovery process. Furthermore, family members need to cope with the cognitive and personality changes that have occurred as a result of the injury, as these changes can interfere with communication and the patient’s ability to be independent in the home setting. Family members may experience a sense of loss for the patient because he or she is no longer the exact same person as before the injury. And like the patient himself, family members will need to learn to accept the new person and the changes and move on in order to redefine their relationships, develop new roles, and reestablish equilibrium in the family. A common pattern in neuropsychological rehabilitation is that the primary caregiver and the family in general, focus exclusively on the patient’s needs. However, the caregiver and the family unit overall cannot consistently ignore their own needs on a long-term basis. This can result in anger, resentment, and burnout. It is important during the rehabilitation process to help the family cope and adjust to the changes. This help can come in several forms, such as psychotherapy and counseling, attending support groups for families of patients with TBI, and social support. Assisting the family in adjusting to the changes and finding a sense of meaning and pleasure in the presence of brain injury is important for successful rehabilitation. Research has demonstrated that strong family support is one of the ­predictors for

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successful rehabilitation following TBI. The family can be involved in the rehabilitation process and facilitate rehabilitation objectives targeted during formal therapy. Family involvement in therapy seems to be more critical today given the changes in health care, resulting in a reduction in the amount of formal treatment that patients receive after TBI.

5.5 Conclusions The neuropsychological and psychological rehabilitation of patients with TBI is the core of successful rehabilitation after brain injury. As eloquently described by Prigatano (1999), this effort should incorporate five key components:

1. A therapeutic community (milieu) that can support the patient through the process 2. Systematic cognitive rehabilitation to address the cognitive-linguistic deficits associated with the injury 3. Counseling and psychotherapy to help the patient cope with the changes and accept the new self 4. Involvement and support of the patient’s family 5. Supervised/protected work trial for successful reintegration to the workforce

Access to resources continues to be a challenge for patients and their families, which hampers reintegration success after TBI. The brain injury community (consisting of survivors, family members, and professionals dedicated to brain injury management) has made great strides to increase awareness and systematic education of the general public, health care professionals, legal communities, third-party payers, and policy makers regarding the effects of TBI and the necessary components of effective rehabilitation. However, more systematic efforts are needed in this area in order to improve the research funding and allocation of resources required for successful rehabilitation, support, and reintegration of patients with brain injuries.

References Ashby, F.G., Alfonso-Reese, L.A., Turken, A.U., and Waldron, E.M. (1998). A neuropsychological theory of multiple systems in category learning. Psychological Review, 105, 442–481. Ashley, M.J., Leal, R., and Mehta, Z. (2004). Cognitive disorders: diagnosis and treatment in the TBI patient. In Traumatic Brain Injury Rehabilitation: Rehabilitative Treatment and Case Management, 2nd ed., Ashley, M.J., Ed. CRC Press, Boca Raton, FL, pp. 367–402. Ashley, M.J., Ninomiya, J., Berryman, A., and Goodwin, K. (2004). Vocational rehabilitation. In Traumatic Brain Injury Rehabilitation: Rehabilitative Treatment and Case Management, 2nd ed., Ashley, M.J., Ed. CRC Press, Boca Raton, FL, pp. 509–538. Atchison, T.B., Sander, A.M., Struchen, M.A., High, W.M., Roebuck, T.M., Contant, C.F., Wefel, J.F., Novack, T.A., and Sherer, M. (2003). Relationship between neuropsychological test performance and productivity at 1-year following traumatic brain injury. The Clinical Neuropsychologist, 18, 249–265. Baddeley, A. (1992). Working memory. Science, 255, 556–559.

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Baddeley, A., Harris, J., Sunderland, A., Watts, K.P., and Wilson, B. (1987). Closed head injury and memory. In Neurobehavioral Recovery from Head Injury, Levin, H.S., Grafman, J., and Eisenberg, H.M., Eds. Oxford University Press, New York, pp. 295–317. Baddeley, A.D. and Hitch, G. (1974). Working memory. In The psychology of learning and motivation, Vol. 8, Bower, G.A., Ed. Academic Press, New York, pp. 47–89. Behavioral Analysts Certification Board. (n.d.). Retrieved March 15, 2006, from http://www. bacb.com Benson, F.D. and Ardilla, A. (1996). Aphasia: A Clinical Perspective. Oxford University Press, New York. Ben-Yishay, Y., Silver, S.M., Plasetsky, E., and Rattock, J. (1987). Relationship between employability and vocational outcome after intensive holistic cognitive rehabilitation. Journal of Head Trauma Rehabilitation, 2, 45–48. Boake, C., Millis, S., High, W.M.J., Delmonico, R.L., Kreutzer, J.S., Rosenthal, M., Sherer, M., and Ivanhoe, C.B. (2001). Using early neuro­psychological testing to predict longterm productivity outcome from traumatic brain injury. Archives of Physical Medicine and Rehabilitation, 82, 761–768. Brown, A.W., Malec, J.F., McClelland, R.L., Diehl, N.N., Englander, J., and Cifu, D.X. (2005). Clinical elements that predict outcome after traumatic brain injury: a prospective multicenter recursive partitioning (decision-tree) analysis. Journal of Neurotrauma, 22, 1040–1051. Buffington, L.H. and Malec, J.F. (1997). The vocational rehabilitation continuum: maximizing outcomes through bridging the gap from hospital to community-based services. Journal of Head Trauma Rehabilitation, 12, 1–13. Caetano, C. and Christensen, A.L. (1997). The design of neuropsychological rehabilitation: the role of neuropsychological assessment. In Neuropsychological Rehabilitation: Fundamentals, Innovations, and Directions, Leon-Corrion, J., Ed. St. Lucie Press, Delray Beach, FL, pp. 63–72. Caramazza, A. and Shelton, J.R. (1998). Domain-specific knowledge systems in the brain: the animate-inanimate distinction. Journal of Cognitive Neuroscience, 10, 1–34. Cavaco, S., Malec, J.F., and Bergquist, T. (2005). Nondeclarative memory in the rehabilitation of amnesia. Brain Injury, 19, 853–859. Christensen, A.L. and Caetano, C. (1999). Cognitive neurorehabilitation: a comprehensive approach. In Neuropsychological Rehabilitation in the Interdisciplinary Team: The Postacute Stage, Stuss, D.T., Winour, G., and Roberston, I.H., Eds. Cambridge University Press, Cambridge, U.K., pp. 188–199. Cicerone, K.D., Dahlberg, C., Kalmar, K., Langenbahn, D.M., Malec, J.F., Bergquist, T.F., Felicetti, T., Giacino, J.T., Harley, J.P., Harrington, D.E., Herzog, J., Kneipps, S., Laatsch, L., and Morse, P.A. (2000). Evidence-based cognitive rehabilitation: recommendations for clinical practice. Archives of Physical Medicine and Rehabilitation, 81, 1596–1615. Cicerone, K.D., Dahlberg, C., Malec, J.F., Langenbahn, D.M., Felicetti, T., Kneipp, S., Ellmo, W., Kalmar, K., Giacino, J.T., Harley, J.P., Laatsch, L., Morse, P.A., and Catanese, J. (2005). Evidence-based cognitive rehabilitation: updated review of the literature from 1998 through 2002. Archives of Physical Medicine and Rehabilitation, 86, 1681–1692. Cicerone, K.D. and Giacino, J.T. (1992). Remediation of executive function deficits after traumatic brain injury. Neurorehabilitation, 2, 12–22. Coelho, C.A., DeRuyter, F., and Stein, M. (1996). Treatment efficacy: cognitive communicative disorders resulting from traumatic brain injury in adults. Journal of Speech and Hearing Research, 39, S5–S17. Constantinidou, F. (1999). The effects of stimulus modality on interference and recognition performance following brain injury. Journal of Medical Speech-Language Pathology, 7, 283–295.

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Constantinidou, F. and Kreimer, L. (2004). Feature description and categorization of common objects after traumatic brain injury: the effects of a multi-trial paradigm. Brain and Language, 89, 216–225. Constantinidou, F., Neils, J., Bouman, D., Lee, L., and Shuren, J. (1996). Pictorial superiority during verbal learning tasks following moderate to severe closed head injury: additional evidence. Journal of General Psychology, 123, 173–184. Constantinidou, F., Thomas, R., and Best, P. (2004). Principles of cognitive rehabilitation: an integrative approach. In Traumatic Brain Injury Rehabilitation: Rehabilitative Treatment and Case Management, 2nd ed., Ashley, M.J., Ed. CRC Press, Boca Raton, FL, pp. 337–366. Constantinidou, F., Thomas, R.D., Scharp, V.L., Laske, K.M., Hammerly, M.D., and Guitonde, S. (2005). Effects of categorization training in patients with TBI during postacute rehabilitation: preliminary findings. Journal of Head Trauma Rehabilitation, 20, 143–157. Corrigan, J.D., Whiteneck, G., and Mellick, D. (2004). Perceived needs following traumatic brain injury. Journal of Head Trauma Rehabilitation, 19, 205–216. Crosson, B. and Buenning, W. (1984). An individualized memory retraining program after closed-head injury: a single-case study. Journal of Clinical Neuropsychology, 6, 287–301. Crosson, B., Cooper, P.V., Lincoln, R.K., Bauer, R.M., and Velozo, C.A. (1993). Relationship between verbal memory and language performance after blunt head injury. The Clinical Neuropsychologist, 7, 250–267. Crovitz, H.F., Harvey, M.T., and Horn, R.W. (1979). Problems in the acquisition of imagery mnemonics: three brain-damaged cases. Cortex, 15, 225–243. Dawson, D.R., Markowitz, M., and Stuss, D.T. (2005). Community integration status 4 years after traumatic brain injury. Journal of Head Trauma Rehabilitation, 20, 426–435. Eimer, M. (1997). An event related potential study of transient and sustained visual attention to color and form. Biological Psychology, 44, 143–160. Erickson, M.A. and Kruschke, J.K. (1998). Rules and exemplars in category learning. Journal of Experimental Psychology, 2, 107–141. Farah, M.J. and McClelland, J.L. (1991). A computational model of semantic memory impairment: modality specificity and emergent category specificity. Journal of Experimental Psychology: General, 120, 339–357. Finkelstein, E.A., Corso, P.S., and Miller, T.R. (2006). The Incidence and Economic Burden of Injuries in the United States. Oxford University Press, New York. Fromkin, V. and Rodman, R. (1992). An Introduction to Language. Harcourt Brace Publications, Orlando, FL. Gazzaniga, M.S., Ivry, R.B., and Mangun, G.R. (1998). Cognitive Neuroscience: The Biology of the Mind. W.W. Norton & Company, New York. Glisky, E.L. (1992). Computer-assisted instruction for patients with traumatic brain injury: teaching of domain-specific knowledge. Journal of Head Trauma Rehabilitation, 7, 1–12. Goldstein, F.C., Levin, H.S., Boake, C., and Lohrey, J.H. (1990). Facilitation of memory performance through induced semantic processing in survivors of severe closed-head injury. Journal of Clinical and Experimental Neuropsychology, 12, 286–300. Hagen, C., Malkmus, D., and Durham, P. (1979). Levels of cognitive functioning. In Rehabilitation of the Head-Injured Adult: Comprehensive Physical Management. Professional Staff Association of Rancho Los Amigos Hospital, Downey, CA. Hart, T., Buchhofer, R., and Vaccaro, M. (2004). Portable electronic devices as memory and organizational aids after traumatic brain injury: a consumer survey study. Journal of Head Trauma Rehabilitation, 19, 351–365. Hart, T., Whyte, J., Polansky, M., Kersey-Matusiak, G., and Fidler-Sheppard, R. (2005). Community outcomes following traumatic brain injury. Journal of Head Trauma Rehabilitation, 20, 158–172.

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Jennett, B. and Bond, M. (1975). Assessment outcome after severe brain damage: practical scale. Lancet, 1, 480–484. Jorge, R.E., Robinson, R.G., Moser, D., Tateno, A., Crespo-Facorro, B., and Arndt, S. (2004). Major depression following traumatic brain injury. Archives of General Psychiatry, 61, 42–50. Keyser-Marcus, L.A., Bricout, J.C., Wehman, P., Campbell, L.R., Cifu, D.X., Englander, J., High, W., and Zafonte, R.D. (2002). Acute predictors of return to employment after traumatic brain injury: a longitudinal follow-up. Archives of Physical Medicine and Rehabilitation, 83, 635–641. Knowlton, B.J. and Squire, L.R. (1993). The learning of natural categories: parallel memory systems for item memory and category-level knowledge. Science, 262, 1747–1749. Kupfermann, I. (1991). Learning and memory. In Principles of Neural Science, 3rd ed., Kandel, E.R., Schwartz, J.H., and Jessell, T.M., Eds. Elsevier, New York, pp. 823–838. Langlois, J.A., Rutland-Brown, W., and Thomas, K.E. (2006). Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations, and Deaths. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control. Retrieved March 23, 2006, from http://www.cdc.gov/ncipc/pub-res/TBI_in_US_04/ TBI-USA_Book-Oct1.pdf Lawson, M.J. and Rice, D.N. (1989). Effects of training in use of executive strategies on a verbal memory problem resulting from closed head injury. Journal of Clinical and Experimental Neuropsychology, 11, 842–854. Levin, H.S. (1992). Neuropsychological rehabilitation of head injured patients: an appraisal of recent progress. Scandinavian Journal of Rehabilitation Medicine, Suppl. 26, 14–24. Levin, H.S., Benton, A.L., and Grossmann, R.G. (1982). Neurobehavioral Consequences of Closed Head Injury. Oxford University Press, New York. Levin, H.S. and Goldstein, F.C. (1986). Organization of verbal memory after severe closedhead injury. Journal of Clinical and Experimental Neuropsychology, 8, 643–656. Levin, H.S., O’Donnell, V.M., and Grossman, R.G. (1979). The Galveston Orientation and Amnesia Test: a practical scale to assess cognition after head injury. Journal of Nervous and Mental Disease, 167, 675–684. Malec, J.F. (1996). Cognitive rehabilitation. In Neurology and Trauma, Evans, R.W., Ed. W.B. Saunders Company, Philadelphia, pp. 231–248. Malec, J.F. (2001). Impact of comprehensive day treatment on societal participation for persons with acquired brain injury. Archives of Physical Medicine and Rehabilitation, 82, 885–895. Malec, J.F., Buffington, A.L., Moessner, A.M., and Degiorgio, L. (2000). Medical/vocational case coordination system for persons with brain injury: an evaluation of employment outcomes. Archives of Physical Medicine and Rehabilitation, 81, 1007–1015. Malec, J.F. and Moessner, A.M. (2006). Replicated positive results for the VVC model of vocational intervention after ABI within the social model of disability. Brain Injury, 20, 227–236. Mateer, C.A. and Raskin, S. (1999). Cognitive rehabilitation. In Rehabilitation of the Adult and Child with Traumatic Brain Injury, 3rd ed., Rosenthal, M., Ed. F.A. Davis, Philadelphia, pp. 254–270. McMillan, T.M., Jongen, E.L., and Greenwood, R.J. (1996). Assessment of post-traumatic amnesia after severe closed head injury: retrospective or prospective? Journal of Neurology, Neurosurgery, and Psychiatry, 60, 422–427. Montgomery, G.K. (1995). A multi-factor account of disability after brain injury: implications for neuropsychological counseling. Brain Injury, 5, 453–469. National Institute of Neurological Disorders and Stroke. (1989). Interagency Head Injury Task Force Report. National Institutes of Health, Bethesda, MD.

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Nosofsky, R.M. (1986). Attention, similarity, and the identification-categorization relationship. Journal of Experimental Psychology: General, 115, 39–57. Ownsworth, T. and Fleming, J. (2005). The relative importance of metacognitive skills, emotional status, and executive function in psychosocial adjustment following acquired brain injury. Journal of Head Trauma Rehabilitation, 20, 315–332. Parente, R. and Anderson-Parente, J.K. (1989). Retraining memory: theory and application. Journal of Head Trauma Rehabilitation, 4, 55–65. Persel, C.S. and Persel, C.H. (2004). The use of applied behavior analysis in traumatic brain injury rehabilitation. In Traumatic Brain Injury Rehabilitation: Rehabilitative Treatment and Case Management, 2nd ed., Ashley, M.J., Ed. CRC Press, Boca Raton, FL, pp. 403–454. Piaget, J. (1969). The Child’s Conception of the World. Little Field, Adams, Patterson, NJ. Prigatano, G.P. (1986). Neuropsychological Rehabilitation after Brain Injury. Johns Hopkins University Press, Baltimore. Prigatano, G.P. (1999). Principles of Neuropsychological Rehabilitation. Oxford, New York. Prigatano, G.P. (2003). Challenging dogma in neuropsychology and related disciplines. Archives of Clinical Neuropsychology, 18, 811–825. Prigantano, G.P. and Ben-Yishay, Y. (1999). Psychotherapy and psychotherapeutic interventions in brain injury rehabilitation. In Rehabilitation of the Adult and Child with Traumatic Brain Injury, 3rd ed., Rosenthal, M., Kreutzer, J.S., Griffith, E.R., and Pentland, B., Eds. F.A. Davis Co., Philadelphia, pp. 271–283. Richardson, J.T. (1979). Mental imagery, human memory, and the effects of closed head injury. British Journal of Social and Clinical Psychology, 18, 319–327. Richardson, J.T. and Barry, C. (1985). The effects of minor closed head injury upon human memory: further evidence on the role of mental imagery. Cognitive Neuropsychology, 2, 149–168. Sarno, M.T. (1984). Verbal impairment after head injury. Journal of Nervous and Mental Disease, 172, 475–479. Schacter, D.L. and Tulving, E. (1994). Memory Systems 1994. MIT Press, Cambridge, MA. Shimamura, A.P. (1995). Memory and frontal lobe function. In The Cognitive Neurosciences, Gazzaniga, M.S., Ed. MIT Press, Cambridge, MA, pp. 803–813. Sohlberg, M.M. and Mateer, C.A. (1987). Effectiveness of an attentional training program. Journal of Clinical and Experimental Neuropsychology, 9, 117–130. Sohlberg, M.M. and Mateer, C.A. (1989). Introduction to Cognitive Rehabilitation. The Guilford Press, New York. Sohlberg, M.M. and Mateer, C.A. (2001). Cognitive Rehabilitation: An Integrative Neuropsychological Approach. The Guilford Press, New York. Spikman, J.M., Berg, I.J., and Deelman, B.G. (1995). Spared recognition capacity in elderly and closed-head injury subjects with clinical memory deficits. Journal of Clinical and Experimental Neuropsychology, 17, 29–34. Squire, L.R. (1987). Memory and Brain. Oxford University Press, New York. Squire, L.R. (1992). Memory and the hippocampus: a synthesis from findings with rats, monkeys, and humans. Psychological Review, 99, 195–231. Squire, L.R. and Zola-Morgan, S. (1991). The medial temporal lobe memory system. Science, 253, 1380–1386. Thurman, D.J., Alverson, C., Dunn, K.A., Guerrero, J., and Sniezek, J.E. (1999). Traumatic brain injury in the United States: a public health perspective. Journal of Head Trauma Rehabilitation, 14, 602–615. Tulving, E. (1985). How many memory systems are there? American Psychologist, 40, 385–398.

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Wehman, P., Targett, P., West, M., and Kregel, J. (2005). Productive work and employment for persons with traumatic brain injury. Journal of Head Trauma Rehabilitation, 20, 115–127. Yorkston, K.M. and Kennedy, M.R.T. (1999). Treatment approaches for communication disorders. In Rehabilitation of the Adult and Child with Traumatic Brain Injury, 2nd ed., Rosenthal, M., Griffith, E.R., Dreutzer, J.S., and Pentland, B., Eds. F.A. Davis Co., Philadelphia, pp. 284–296. Zeman, A. (2001). Consciousness. Brain, 124(7), 1263–1289.

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Appendix 5.1 Rancho Los Amigos Scale I. No Response Patient is in coma and unresponsive to stimuli. II. Generalized Response Patient reacts inconsistently and nonpurposefully to stimuli in a nonspecific manner. Reflexes are limited and often the same, regardless of stimuli presented. III. Localized Response Patient responses are specific but inconsistent, and are directly related to the type of stimulus presented, such as turning head toward a sound or focusing on a presented object. He may follow simple commands in an inconsistent and delayed manner. IV. Confused — Agitated Patient is in a heightened state of activity and severely confused, disoriented, and unaware of present events. His behavior is frequently bizarre and inappropriate to his immediate environment. He is unable to perform self-care. If not physically disabled, he may perform automatic motor activities such as sitting, reaching, and walking as part of his agitated state, but not necessarily as a purposeful act. V. Confused — Inappropriate, Nonagitated Patient appears alert and responds to simple commands. Able to respond to more complex commands; however, the responses are nonpurposeful and random. The patient may show some agitated behavior in response to external stimuli rather than internal confusion. The patient is highly distractible and generally has difficulty in learning new information. He can manage self-care activities with assistance. His memory is impaired and verbalization is often inappropriate. VI. Confused — Appropriate Patient shows goal-directed behavior, but relies on cueing for direction. He can relearn old skills such as activities of daily living, but memory problems interfere with new learning. He has beginning awareness of self and others. Resolution of posttraumatic amnesia.

 Adapted from Hagen, Malmus, and Durham, 1979.

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VII. Automatic — Appropriate Patient goes through daily routine automatically, but is robot-like with appropriate behavior and minimal confusion. He has shallow recall of activities and superficial awareness of, but lack of insight to, his condition. He requires at least minimal supervision because judgment, problem solving, and planning skills are impaired. VIII. Purposeful — Appropriate Patient is alert and oriented and is able to recall and integrate past and recent events. He can learn new activities and continue in home and living skills, though deficits in stress tolerance, judgment, abstract reasoning, and social, emotional, and intellectual capacities may persist.

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6

Legal Issues in Expert Testimony Daniel A. Bronstein

Contents 6.1 6.2 6.3

6.4

6.5

6.6

Introduction.................................................................................................. 120 The Daubert Factors.................................................................................... 120 6.2.1 Other Legal Tests of Admissibility................................................... 121 6.2.2 Does It Matter?................................................................................. 122 Pretrial Matters............................................................................................ 122 6.3.1 Disclosure of Experts........................................................................ 122 6.3.2 Interrogatories................................................................................... 124 6.3.3 Depositions....................................................................................... 124 6.3.4 Production of Documents and Things.............................................. 124 6.3.5 Physical and Mental Exams.............................................................. 125 6.3.6 Requests for Admission.................................................................... 125 6.3.7 Pretrial Conferences......................................................................... 125 6.3.8 Preparing the Attorney..................................................................... 125 Potential Nonhearsay Evidentiary Issues..................................................... 125 6.4.1 Habit.................................................................................................. 126 6.4.2 Tests and Experiments...................................................................... 126 6.4.3 Samples and Their Handling............................................................ 126 6.4.4 Introducing Physical Objects into Evidence..................................... 127 6.4.5 The “Best Evidence” Rule................................................................ 127 Potential Hearsay Issues.............................................................................. 128 6.5.1 Hearsay Defined................................................................................ 128 6.5.2 Res Gestae........................................................................................ 129 6.5.3 Statements Made for Medical Reasons............................................. 129 6.5.4 Notes and Memos............................................................................. 130 6.5.5 Business Records.............................................................................. 130 6.5.6 Printed Matter................................................................................... 131 6.5.7 Other Hearsay Issues........................................................................ 132 6.5.8 Hearsay Summary............................................................................ 133 Being a Persuasive Witness.......................................................................... 133 6.6.1 The Courtroom................................................................................. 133 6.6.2 Visual Aids....................................................................................... 135 6.6.3 Types of Direct Testimony: Hypothetical Questions........................ 135 6.6.4 Organizing Narrative Testimony...................................................... 136

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6.6.5 Speaking Style.................................................................................. 137 6.6.6 Other Items to Consider.................................................................... 138 6.6.7 Effective Response to Cross-Examination....................................... 138 6.7 Conclusion.................................................................................................... 139 References............................................................................................................... 140

6.1 Introduction There has recently been a great deal of discussion in the expert community (including the earlier edition of this book) about the implications of the so-called Daubert trilogy. These three cases have been decided by the U.S. Supreme Court since 1993 (U.S. Supreme Court, 1993, 1997, 1999). In essence, these cases say that in the federal courts, the trial judge has the so-called gatekeeper function of deciding whether an expert’s testimony will be received. Notice, however, one of the main qualifications in that statement: These rules only apply in the federal courts and in those states that choose to follow the same reasoning. These decisions are not binding on all courts in the country since they are procedural (concerned with how trials should be conducted), not substantive (dealing with the legal rights of parties). A recent survey (Gross and Kellogg, 2005) showed that 27 states have adopted the Daubert rule (AK, AR, CO, CT, DE, ID, IN, IW, KT, LA, ME, MS, MT, NE, NM, NC, OH, OK, OR, RI, SC, SD, TN, TX, VT, WV, WY), 17 and the District of Columbia have rejected it (AZ, CA, DC, FL, GA, IL, KS, MD, MI, MN, MO, NY, ND, PA, UT, VA, WA, WI), and 6 have gone part way to adopting it (AL, HI, MA, NV, NH, NJ). If a generalization can be made, it would appear that most of the more populous states have not adopted these rules in their entirety.

6.2 The Daubert Factors Rule 702 of the Federal Rules of Evidence (FRE) states: “If scientific, technical or other specialized knowledge will assist the trier of fact [judge or jury] to understand the evidence or determine a fact in issue,” then an expert will be allowed to testify. The Daubert trilogy deals with what constitutes “scientific, technical or other specialized knowledge.” In the Daubert decision the Supreme Court said: This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate. (U.S. Supreme Court, 1993)

The criteria the Court then set forth are (U.S. Supreme Court, 1993, 1997, 1999):

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1. If it is a theory, has it been, or can it be, tested? 2. Has it been subject to peer review? 3. Has it been published in the appropriate specialized literature? 4. For tests and techniques, has an error rate been determined?

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5. Are there existing standards for the test? 6. Is there general acceptance of the theory, test, or technique in the relevant scientific community?

The proposed expert testimony does not have to meet all these criteria; they are merely things that the judge must consider in making the preliminary decision to admit or exclude the testimony. And that decision is made long before the case comes to trial. A lawyer objects to the admission of expert testimony by filing a motion in liminae to exclude certain testimony. Both sides then file briefs on the issue. The judge may even hold a special hearing at which the witness appears. Then, after considering the question at leisure, the judge makes a decision. A motion to exclude an expert witness that is not made well in advance of trial is an almost certain loser, as judges do not like to make such decisions without plenty of time to consider them. The Joiner case, the second of the trilogy, discussed what standard applies to reviewing the decision of the trial judge to permit or exclude expert testimony on an appeal to higher courts. In this case, the trial judge had excluded certain expert testimony under his interpretation of the Daubert criteria, and the Court of Appeals had reversed. The Supreme Court then reversed that decision, saying, “All evidentiary decisions are reviewed under an abuse of discretion standard” (U.S. Supreme Court, 1997). In other words, Joiner stands for the proposition that, if you are subject to a Daubert motion, you had better win it, because the chances of winning an appeal are small. Kumho Tire dealt with the application of Daubert to “technical or other specialized knowledge” that is not “scientific.” The issue was the admissibility of an engineering expert’s opinion regarding the cause of a tire failure, and the Supreme Court held that such testimony is also subject to the Daubert gatekeeper function.

6.2.1  Other Legal Tests of Admissibility The other major legal test for the admissibility of expert testimony is the so-called Frye test, named after the case in which it was enunciated in 1923, Frye v. United States. (U.S. ct. App. 1923) The Frye test is simply the last of the Daubert factors discussed above: Is there general acceptance of the theory, test, or technique in the relevant community? The problem with the Frye test, of course, is that it potentially excludes new and possibly revolutionary theories, tests, or techniques that have not yet become generally accepted. At various times, for example, positron emission tomography (PET), CAT, and MR images were excluded, as they were too new to be generally accepted. Of course, some things that were routinely admitted under Frye, such as fingerprint identification, are now questioned under the Daubert standards — in this instance because there is no established error rate. The six states listed above as having gone part way from Frye to Daubert generally add one or two of the Daubert criteria to the old Frye test. Most commonly, the added criteria are peer review and publication, but this varies from state to state. The best suggestion to you, as an expert, is to check with the lawyer if you are in one of those states.

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6.2.2  Does It Matter? The short answer is probably not. Despite the amount of time and effort that has been devoted to discussion of Daubert, those recent articles that have done empirical studies of the issue tend to conclude that the same testimony is generally admitted or excluded under any of the tests (Cheng and Yoon, 2005; Vickers, 2005). So, what does this mean for you as an expert witness? The most important thing you can do is to write your reports in such a fashion that the question of admissibility never arises. You do this by referencing the literature for each part of your work. Things like “The test was performed as instructed by Smith and Jones (1988) in their definitive article” or “Following the methods set forth in APA Standard XYZ” sprinkled through the report will help persuade the opposing lawyer that filing a motion in liminae would simply be a waste of time and effort.

6.3 Pretrial Matters After a suit is filed there is a great deal of activity before it ever comes to a trial. This is called pretrial, and the most important aspect for the expert is discovery. During discovery, each side learns what evidence the other side intends to present, what documents or physical objects will be introduced into evidence, and who the expert witnesses will be and what they will say (Bronstein, 2007).

6.3.1  Disclosure of Experts The information that must be disclosed is specified by the Federal Rules of Civil Procedure (FRCP). Again, FRCP, like FRE, is procedural and so applies only in the federal courts. But all states have adopted similar rules regarding discovery, even though they are probably numbered differently. For this reason, we will used the reference to FRCP in this chapter. Rule 26(a)(2) of FRCP states: A party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence [in other words, an expert].   Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. (Federal Rules of Evidence; Bronstein, 1999)

There is, obviously, a great deal involved here. We already discussed the report in the last section; now we will discuss the presentation of qualifications. FRE Rule

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702, previously mentioned in connection with Daubert issues, goes on to say, “A witness qualified as an expert by knowledge, skill, experience, training, or education may testify.” As a point of interest, notice that you need only have one of these methods of qualification, not all of them; however, I suspect most readers of this chapter will have all of them. The standard format preferred by most lawyers for your qualifications looks like the one shown in Figure 6.1: Name Home Address

Employer (if any) Address Job Title

Education: Degree, College, major, year Graduate or professional degree[s], University, major, year[s] Residency training, where, years Employment History: First relevant job after graduation Next relevant job .... .... Job before present one Professional Licenses and Organizations: State licenses Board certifications (for physicians) Membership in professional societies Offices in professional societies (if any) Number of publications in professional lifetime, X; in last 10 years, Y Number of times an expert witness, X; in last 4 years, Y

Figure 6.1  Standard format template.

Then, starting on a separate sheet, are the full references for all the publications and the references to the cases in which you have testified. The cases should be listed by party names, state, county (city), and year, unless you happen to have exact references, such as “Circuit Court for X County, Civil 03-11245,” in which case you give that instead of the county or city and year. The only way in which this differs from a normal C.V. is the order in which the jobs are listed — from first to last instead of the other way around. The reason for this is so that, when and if you actually testify, it flows better. In testifying, you will be asked about education and then the next question will be: “And, after that, what position did you assume?” This creates a natural progression for you to tell people how you became the authority you now are. It is also necessary to disclose any documents or things you intend to use in your testimony. If you are relying on a magnetic resonance (MR) image, for example, a

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copy should be attached to the report. So should an analysis of a Minnesota Multiphasic Personality Inventory (MMPI) or Myers–Briggs, if it was used. However, things you will use only for illustrative purposes do not have to be disclosed at this time, as your opinion is not in any way based on them. We will discuss visual aids later in the chapter.

6.3.2  Interrogatories Interrogatories are written questions sent by one side to the other. They generally deal only with factual issues, not opinions, but it is possible that the lawyer will ask you to help draft an answer to one or more of them. If that happens, give it real attention; the answers to interrogatories are admissible into evidence, and you do not want to create future problems for yourself.

6.3.3  Depositions The odds are good that if the case seems headed for trial, the other side will take your deposition. A deposition is just like courtroom testimony, but is conducted in the reverse order. Since the other side is the one who asks for it, they get to crossexamine you before you get the chance to tell your side of things. And, as a general rule, you never do get to give your side in a straightforward manner, as your attorney will only ask such questions as she feels are needed to bolster weak points. There is no judge present at a deposition — just the lawyers and the court reporter. But you will testify under oath, and the deposition can be introduced into evidence at the eventual trial. Nowadays, it is very likely that you will also be videotaped during the deposition (they have to notify you of this when directing you to appear), so it is a good idea to watch your manners while the camera is running. Two hints about deposition conduct. First, a lawyer has to object to things that might not be admissible at trial when they arise, or she may not be able to object later (Federal Rules of Evidence). Thus, if your lawyer says something like “I object to that question; relies on hearsay,” you still go ahead and answer it. If she really does not want you to answer it, she would say something like “Don’t answer that question!” Second, read the deposition after it has been transcribed to make sure it correctly reflects what you believe you said. Court reporters can make transcription errors, but once they are typed up, they take on a life of their own. They can even reach the point of being uncorrectable (Incarnati v. Savage, 1982). So avoid the problem in advance by reading the transcript. For hints regarding tactics that lawyers use during depositions, see the later section of this chapter discussing cross-examination.

6.3.4  Production of Documents and Things Both sides can request documents or things from the other side. This includes previous medical reports and mental examinations. These are not protected by confidentiality, as once a claim is made for medical or mental injury, confidentiality of medical history is considered to have been waived. So, if you are working for the defense, you can ask the attorney to get you all records of such previous exams.

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6.3.5  Physical and Mental Exams If you have not seen the injured person and want to examine him or her, but the person refuses to show up, the attorney can file a motion for an examination. Be aware, however, that the attorney for the party you are examining will probably be there during the exam. This rule is rarely used, as the attorneys generally cooperate to arrange for examinations by experts.

6.3.6  Requests for Admission The request for admission is a device intended to simplify and shorten trials. The idea is to have the parties agree on as much as possible in advance, so less time needs to be spent in court. Occasionally, however, an attorney will attempt to “throw one past” her opponent by requesting agreement on something that would undermine the basis of the expert’s opinion. If that were to happen, the attorney would probably come to you and ask, “Can we agree to this?” Then you must give her an honest answer.

6.3.7  Pretrial Conferences This is a meeting in the judge’s chambers before the trial. The intent is to reach agreement on as many issues as possible so as to shorten and simplify the trial. A problem may arise, however, if the judge or the opposing attorney suggests that a certain bit of evidence just does not appear too significant and “Why can’t we skip that?” Sometimes, that “bit” could be vital to your expert opinion in the case and, hopefully, the attorney will recognize that and call you to ask, “Can we skip it?” Again, give an honest answer.

6.3.8  Preparing the Attorney Not infrequently, an attorney will ask you to help her prepare to deal with the other side’s expert. This would normally be negotiated as part of the retaining agreement (see chapter 7). If you have agreed to do this, you must read the other side’s reports with care to find any weak spots that might exist. You also need to read all of the expert’s publications, and that includes doing the research to find publications that are not listed on the documents produced during discovery. Sometimes an expert will omit an article that is more than 10 years old and somehow contradicts his current position. It is up to you to dig it up. Then you need to educate the attorney in your field of expertise so she can conduct a reasonable cross-examination of the other side’s expert. This can be difficult. Many attorneys have difficulty making time available and will say something like “Just give me a list of questions.” The problem with that is if the attorney does not understand the point of the question you give her, she is unable to ask the appropriate follow-up questions. So try to insist that if she wants her money’s worth from hiring you to “prep” her, she needs to spend the necessary time being instructed.

6.4 Potential Nonhearsay Evidentiary Issues Here we will discuss evidentiary issues that do not relate to the hearsay rule; that will be the subject of the next section.

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6.4.1  Habit Habit is a powerful force in human behavior, and the rules of evidence recognize that fact. FRE 406 says: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

All that is necessary, then, in response to the question “How do you know you did the test that way when it’s not reflected in your notes or your report?” is for you to answer, “That’s the way I always do it.” But, of course, it would be nice to have some sort of corroboration, such as an office procedures manual. It would also be nice for you to develop the habit of listing your procedures in your notes and reports.

6.4.2  Tests and Experiments Lawyers distinguish between tests and experiments in a way that makes little sense to professionals in other fields. A test is something done to, at, or with a person or thing (or the equivalent) directly involved in the original event; an experiment is an attempt to duplicate the original event as closely as possible. In your area, an MRI or CAT scan or administration of the MMPI is clearly a test, as they are done to the actual person involved. But dropping an instrumented dummy off a 3-meter-high ladder to measure the force exerted on the rear of the skull would equally clearly be an experiment. The problem with experiments is the phrase in the definition “as closely as possible.” The moment an attorney hears a phrase like that, her brain kicks into gear thinking up reasons why the experiment you did was not close enough to the real thing to be admissible. So, whenever you are in doubt as to whether what you did was a test or an experiment, call it a test in all your reports and testimony.

6.4.3  Samples and Their Handling Suppose you wish to take a sample of cerebrospinal fluid and send it to a laboratory in another city for analysis. If so, you face a legal problem normally referred to as the chain of custody. Up until the 1960s, courts were quite strict about enforcing the requirements of the chain of custody, but more recently most courts have loosened up a bit. Nevertheless, it is a good idea to fulfill as many of the traditional requirements as you can. The traditional rule had nine things that needed to be documented:

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1. When the sample was taken 2. Where the sample was taken 3. That the person who took it was properly trained 4. That it was not contaminated while being taken 5. That it was properly stored to prevent contamination or degradation 6. That it was properly labeled for tracking purposes

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7. How it was transported to the laboratory 8. Who conducted the test once it arrived at the laboratory 9. How the test was conducted

Points 8 and 9, hopefully, will be covered in the report you receive back from the laboratory (we will discuss the admissibility of that report in the next section of this chapter, dealing with the hearsay rule). But the documentation of the other points is up to you. If problems arise with points 4 through 7, they are probably not fatal; you most likely will still get the tests into evidence, but the judge will warn the jury that “there might be problems with these tests and you have to decide how much weight to give them” (not, of course, that a jury does not do this anyway).

6.4.4  Introducing Physical Objects into Evidence Here we mean introducing into evidence the physical paper on which a report is written, instead of, or in addition to, simply reading its contents into the record. Or introducing into evidence the x-ray that shows the cranial fracture. There are two things that have to be done before something can be entered into evidence; it has to be authenticated and it has to be verified. Authentication means you have to show that the thing is what you claim it is. Normally this is simple enough; you just testify that this is, indeed, a copy of the report that you wrote or the report you received. Verification can be more difficult in many instances, but probably not too much so for the readers of this book. Verification requires you to show that the object accurately represents what it claims. This creates difficulties for photographs of automobile collision sites, for example, and in that case, someone has to come in and testify that the site really looked like the photograph. But it is hard to imagine somebody questioning that the x-ray does not accurately represent the state of the skull. To prevent such issues from arising, however, it is possible to use the request for admission discussed earlier (Section 6.3.6). Get together a list of the things you believe you will want to introduce into evidence, and then have the attorney send copies of them with a request for admission to the other side. In that way, you can avoid wasting time during your testimony authenticating the documents from your files. Note that the principal reason for introducing an object into evidence is that after they retire to deliberate, the jury can request that the object be brought to the jury room for them to examine (See the video of the classic Henry Fonda/Ed Begley film Twelve Angry Men). So if you have a bench (judge but no jury) trial, there is really no great advantage to introducing the object into evidence. And remember that the item introduced into evidence becomes part of the court record and thus is unavailable to you in the future. So always use copies in the courtroom.

6.4.5  The “Best Evidence” Rule I put “best evidence” in quotes because this is probably the most misnamed rule in all of law. It does not require that the best evidence be introduced. What it states is that to prove the contents of a record, the record itself is the best evidence. In the words of FRE 1002:

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To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

Rule 1001, not reproduced here, makes it clear that “writing, recording, or photograph” includes virtually any type of record you can conceive of, including those stored in digital format. However, there is an exception that completely swallows the rule. FRE 1003 says: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Notice that this is not discussing questions of the accuracy of the copy, but of the genuineness of the original. In other words, if the issue is forgery or editing, then the original must be produced, not otherwise. One other aspect of this rule deserves to be noticed, FRE 1006: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

In other words, you can summarize data, but you have to permit the other side to see the original information so they can determine whether you “fudged” something in making the summary. As with physical objects, above, the solution to this problem is to have the attorney use a request for admission long before the date of trial.

6.5 Potential Hearsay Issues The most famous of the rules of evidence, without doubt, is the rule against hearsay. Lawyers on TV have been objecting to hearsay since long before Perry Mason, so much so that the term has entered our daily conversation. But the hearsay rule of common usage bears little resemblance to the technical legal concept on which it is based.

6.5.1  Hearsay Defined Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Notice there are at least two people involved in a hearsay problem. The declarant is the person who made the out-of-court statement, and the witness is the person in court telling us what the declarant said. The genesis of the rule is that the declarant is not there to be cross-examined, so it is difficult to assess the veracity of the out-ofcourt statement, and so it should be excluded from evidence. The hearsay rule, then, says: “Hearsay is not admissible except as provided by these rules …”

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All of the remaining text of the hearsay rules, and there is a lot of it, deals with exceptions to the rule excluding hearsay from admission. But there are so many of these exceptions that, before we are done, you will probably think that there is never a hearsay problem, at least for expert witnesses. And you will be pretty much correct in that.

6.5.2  Res Gestae This is a term that law professors tried to eliminate from the vocabulary for the last three quarters of the 20th century, but with little success. Nevertheless, we shall show you the academically accepted version. It is contained in FRE 803 and reads: (1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plant, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.

The common thread uniting all three of these exceptions to the hearsay rule is that they are the sort of statements that all of us, in our daily lives, generally accept as valid, unless there is some strong reason to think otherwise. So it is perfectly acceptable for you to testify that the “patient reacted with severe agitation and stated that reliving the incident was very disturbing to her.” That, clearly, would fall under the exception in FRE 803(3).

6.5.3  Statements Made for Medical Reasons The normal assumption is that when securing medical assistance, one tells the truth. So there is an exception to the hearsay rule admitting such statements: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

This means that anything you are told that is clearly relevant to the diagnosis or treatment of the patient is admissible as an exception to the hearsay rule. Notice that the statement does not have to be made by the patient. The police report on an automobile collision victim and the oral statement of a coworker who witnessed a fall off of a ladder are just as admissible. So are statements by parents or teachers regarding a minor brought in for possible TBI treatment after a playground incident, or parental or spousal statements regarding cognitive or personality changes in a TBI victim.

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6.5.4  Notes and Memos FRE 803(5) says: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

This is how the law of evidence deals with things that have been forgotten, but were once known. However, it is not really that simple, because there is another rule of evidence, FRE 612, that is also involved in this situation. It says: If a witness uses a writing to refresh memory for the purpose of testifying, either — (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

In fact, it is necessary to use Rule 612 before one can resort to Rule 803(5), because there is an old legal tradition that prefers live testimony to recorded narrative. Thus, the attorney must first show you the memorandum and ask, “Does this refresh your memory?” If you say yes, then we are proceeding under Rule 612. If you say no, then we are using Rule 803(5) and you will read the memorandum into the transcript. But only the other side can introduce it into evidence.

6.5.5  Business Records For our purposes, there are four rules grouped under this heading. The main one is FRE 803(6), which reads: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The key issue here is that it must be the “regular practice … to make the memorandum, report, record, or data compilation.” The idea is that if the record would be created whether or not there was litigation pending, then it is probably truthful.

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Note the obvious interaction of this rule with FRE 406, Habit and Routine Practice, discussed earlier (Section 6.4.1). Assuming, however, that it is indeed the regular practice to make the record, there are few difficulties in getting its contents into evidence. Most readers generally rely on records received from others: radiology reports, psychological testing results, stress test results, etc. These reports can clearly be read into the record by you as a witness. But be aware that if it is your practice to make such records, you have to do it every time or you could be storing up trouble for yourself. Rule 803(7) is the converse of 803(6): Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), [is admissible] to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

The other two business records rules relate to specialized types of governmental records (FRE 803(8)) and the lack of such records (FRE 803(10)). And there is an additional business records-type exception for vital statistics: Records or data compilations, in any form of births, fetal deaths, deaths, or marriages [are admissible], if the report thereof was made to a public office pursuant to requirements of law.

6.5.6  Printed Matter There are two exceptions to the hearsay rule under this heading. The first is entitled “Market Reports, Commercial Publications” and reads: Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations [are admissible].

What this refers to is things such as stock tables in the Wall Street Journal, chemical information from the Merck index, values from the Handbook of Physics and Chemistry, and, probably most important for readers of this book, drug information from Physicians Desk Reference (PDR). More important to you, and all other expert witnesses, is the so-called learned treatise rule, which reads: To the extent called to the attention of an expert witness upon cross-examination, or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

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In many states’ courts the rule is slightly different; it says you cannot quote from learned treatises in your direct testimony. But that does not mean that you cannot refer to such sources. In fact, you can paraphrase them, if you wish (giving appropriate citations). All you cannot do is quote directly from them. But you will almost certainly encounter this exception to the hearsay rule when cross-examined. The opposing attorney will read you something from such a source and ask you why you disagree with this eminent authority. There are several ways to deal with such questions. First, the statement read to you might be outdated, although once correct, now no longer considered valid. In that case, that is exactly how you should reply, saying something like “We used to believe that, but more recent work shows it to be wrong.” Second, the statement may be from someone from another school of thought entirely. Imagine a psychiatrist who prescribes drugs being cross-examined on the basis of strict psychoanalytic theory, Freudian or not. The answer here is simply, “That author and I disagree on some very fundamental concepts, so I believe she is wrong. But I can give you references to many equally eminent authorities who support my position.” Third, the quote may be from a perfectly respected authority, but one who has a well-known idiosyncratic view on a particular subject (vide Linus Pauling and vitamin C). In that case you simply reply, “Well, Professor X’s views on that subject are notorious, but they are not shared by the vast majority of people working in the field.” Fourth, the quote may be out of context. If the quote sounds completely off the wall, you can ask to see what is being quoted. Then you can read the whole page and reply, “I’m afraid, Ms. Attorney, that you have quoted out of context here. The full page reads as follows.… This is in complete agreement with what I said.” And, last, remember that the average person does not share the professional’s reverence for the written word. You are a real, live person with whom the jury can relate, whereas the book is simply a quote from some unknown person. Thus, most lawyers believe, you are more convincing than any book.

6.5.7  Other Hearsay Issues A frequent problem is what is called multiple hearsay or, as FRE calls it, hearsay within hearsay. This problem arises, for example, when, before lapsing into a coma, the patient told the EMS person that he was injured by a falling pulley block and the EMS person put that in her report. FRE 805 reads: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

In our pulley example, the statement by the injured worker qualifies as an excited utterance (FRE 803(2)) or a statement made for purposes of medical treatment (FRE 803(4)) and the EMS report as a business record (FRE 803(6)), so the statement is admissible in evidence. There is also a catchall exception to the hearsay rule, in case you have a hearsay problem that cannot be solved by any of the preceding rules:

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A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

Notice particularly the last sentence of this rule. You cannot spring such a thing on the other side without advance warning.

6.5.8  Hearsay Summary Although the rule against hearsay is certainly the most famous principle of evidence, you should now realize that it is not really very restrictive. Particularly for the expert witness, it is hard to conceive of a bit of hearsay that you would use in your testimony that would not fit one of the exceptions to the general principle excluding such evidence. So if you think you might have a hearsay problem you cannot resolve, discuss it with the attorney you are working with.

6.6 Being a Persuasive Witness 6.6.1  The Courtroom There are two common physical arrangements of courtrooms in the U.S., usually referred to as traditional and modern. Figure 6.2 and Figure 6.3 show plan views of the two situations, but the elevations are also important. In the traditional courtroom the judge is set higher than anyone else; the witness chair is halfway down to the floor from there, and everybody else is at floor level. In the modern courtroom the judge and the witness chair are at the same level and the rest of the participants are at floor level. By the way, the railing that separates the spectators from the action is the bar; when a lawyer is “admitted to the bar,” it means she is now entitled to pass from the spectator side of the courtroom into the participant side. Even more important than the simple physical arrangement of the room, however, are the amenities that are common in the modern courtroom. These include monitors and screens under the control of the judge, witness, and attorneys, generally connected to one or more computers in the courtroom. And these computers are available for you to use to illustrate and demonstrate aspects of your testimony (see next section). But other aspects of the physical arrangement of the courtroom are also significant. The most important is the need to make eye contact, if possible, with the decision maker. If there is a jury, you have to make eye contact with its members. None of us trust a person who fails to make eye contact with us, and jurors are no exception. This is something you consciously have to think about; the normal thing is to look at

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Attorney’s table

Witness stand Jury box

Attorney’s table

Spectators

Figure 6.2  Old-fashioned courtroom.

Judge

Witness stand Bailiff Clerk Stenographer

Attorney’s table

Jury box

Attorney’s table

Spectators

Figure 6.3  Modern courtroom.

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and make eye contact with the person who asked you the question, the attorney. But it is not the attorney you are trying to convince; it is the jury. So you look at the attorney when she asks you the question and then turn in your seat and address the jury. If you are in a modern courtroom in a judge-only (bench) trial, you do the same thing; turn and address your answer to the judge. It may appear that the judge is not paying attention, but do it anyhow. In a bench trial in a traditional courtroom, however, you cannot easily look up over your right shoulder to make eye contact with the judge, so you can carry on a conversation with the attorney.

6.6.2  Visual Aids The use of visual aids is a must in modern trials. We are all conditioned by television to pay more attention to what we both see and hear than to what we only hear. Remember in the previous discussion of introducing physical objects into evidence (Section 6.4.4) that we also mentioned using things for illustrative purposes. Having a diagram or physical model of the skull and brain showing the various parts, for example, would clearly help the judge or jury understand your testimony regarding physical injury. And having a CAT scan, MRI, PET, or x-ray of the injured brain mounted next to one of an uninjured brain would enable one to more easily explain the injury. Similarly, a graph showing the injured person’s response times or personality profile or other result mounted next to that of the average person (or, even better, the same person’s results before the injury, if available) would quickly and easily convey the message that there had or had not been a significant change. And, of course, one can show videos of the injured person performing various tasks and explain how the injury resulted in the problems shown. Clearly, this is much easier to achieve in the modern courtroom with its built-in technological aids. But it can be done in the traditional courtroom as well. Things can be mounted on poster board and placed on an easel. (Be sure not to block the view of the jury or judge when pointing to things on the easel.) And screens and projectors can be set up in traditional courtrooms. But I believe that this should not be done in a way that interrupts your testimony. Talk with the attorney about this and try to have your testimony scheduled first thing in the morning or immediately after lunch, so the equipment can be positioned and tested before you appear. Some attorneys in modern courtrooms even like to have you use PowerPoint or similar presentations of your testimony. If doing that, be careful not to crowd too much onto each slide; list only the major points you intend to make, not all the details, which would be overwhelming to your lay audience. (See Siemer, 2002) But, as in everything else, exercise moderation in your exhibits and demonstrations; do not get carried away by the technological possibilities. But do not miss the chance to make an effective visual presentation when you can. And, of course, discuss your ideas with the attorney before implementing them.

6.6.3  Types of Direct Testimony: Hypothetical Questions There are two ways you can present your direct testimony: as a narrative or as a response to a hypothetical question. Most attorneys, most of the time, prefer ­narrative,

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as it is more natural sounding. But occasionally, when you have not actually examined the injured person, you might be asked to testify in response to a hypothetical question. If you are going to respond to a hypothetical question, make sure you help to draft it. There are three major rules regarding hypothetical questions, and you need to obey all of them. First, you can only be asked to assume a fact if it is supported by other evidence. No flights of fancy are permitted. Second, the question should fairly reflect all of the evidence, even that which appears to be against your conclusion. However, that is not really a major problem because, third, an expert can ignore any facts that she does not think are either accurate or relevant. Then the other side can bring them up on cross-examination. You should take the question on the witness stand with you and read along as the attorney recites it. That way, if there is something omitted or misstated, you can correct it before you answer by saying, “I would like to also assume that the weight of the falling object was at least 20 pounds.”

6.6.4  Organizing Narrative Testimony To me and most other lawyers, narrative direct testimony is the best approach, as it sounds much more natural. But that does not mean that it is easier to organize, and you, as the expert, have the job of taking the first cut at organizing it. To do that, you should first rank your major points from strongest to weakest. The trick is that strength and weakness have to be rated in two dimensions. Look at Figure 6.4. As you can see, things can be strong in how convincingly they support your ultimate conclusion and also in how much other evidence supports them. Clearly, the strongest point is on the 45° line in the upper right quadrant; it is a strong support to your conclusion and has a very solid basis in the evidence. The second strongest point is also reasonably self-evident. But we could certainly switch numbers 3 and 4 with each other, and the same with numbers 5 and 6. Making the first attempt at Strong support in evidence 4 1

5

2

Weak aid to conclusion

7

6

3

Strong aid to conclusion

Weak support in evidence

Figure 6.4  Ranking measurement tool.

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the ranking is your job as the expert; then you discuss it with the attorney to get her input, especially on the issue of evidentiary support for the point. Now you write a series of questions for the attorney to ask you that will raise the points in the most effective sequence. I, personally, favor an initial question, after your credentials are presented, of “What is your opinion?” which you answer by telling everyone where you are going. This is because I believe it is easier for your audience to follow your logic if they know what conclusion you will reach. And, like almost all attorneys, I want you to save your strongest point for last; people will remember it longer, as it was the last thing you said. But you do not want to take the list of points and go through it in reverse order (7, 6, 5, 4, 3, 2, 1). After all, you have been credentialed and the judge and jury are waiting to learn what you have to say. So start with a reasonably strong point, say, 3; go quickly down to the bottom, and then work back up. So you end up with a sequence similar to 3, 5, 7, 6, 4, 2, 1. However, never let this organization disrupt the technical requirements of your field; if you have to cover point 4 before you can cover point 3, then do so. Now write a question to raise each of the points and make brief notes for your answers. And in those notes, put a reminder to yourself about visual aids you intend to use in the answer (perhaps in italics or curly brackets). So you will have something like this: “Severe physical skull trauma {x-rays}. Brain hit inside of skull {Demo movie}. Resulting nerve damage {MRI}.” Then, when you go to the witness stand, take a copy with you. That way, both you and the attorney have a copy and can keep each other on track. Some people think taking notes on the stand makes you look weak, but I disagree. Everybody knows that the president of the U.S. speaks off a teleprompter, so there is no reason for you not to take notes onto the witness stand. But remember, they should just be notes, not a full-fledged script; that would make you look weak. Forty years ago we had witnesses take as little to the stand with them as possible, as, if you remember FRE 612 (Section 6.5.4), anything the witness takes on the stand the other side is entitled to see. But with modern pretrial discovery, they already know exactly what you are going to say, so that does not matter. And if the opposing attorney asks you. “Who wrote these notes?” attempting to imply that your attorney told you what to say, you can quite honestly answer, “I wrote them to remind me what I intend to say.” And the last question you are asked in your direct testimony should ask for a summary of your entire presentation. “In conclusion, then, what were the major points that led you to your opinion?” In reply, you just whip off the major items, taking, at most, 2 minutes. This is to remind everyone of the entirety of what you said.

6.6.5  Speaking Style First, always remember your primary job is to educate the judge and jury about your field. If you have a jury, the rule of thumb is to teach at the college freshman level; assume all the jury members are high school graduates. In a bench trial, of course, you know the judge is a college graduate, but that says nothing about her scientific background. Ask the attorney to get that information for you (Who’s Who in American Law is a good source). Then you can tailor your presentation in a bench trial to the judge.

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Testifying is the opposite of writing a journal article or preparing a report. Always speak in the first person and in the active voice. You do not say “the MMPI was administered to the patient and the following scores were noted.” You say, instead, “My assistant gave Ms. Smith an MMPI and, when it was scored, I immediately noticed several things.” The passive voice puts people to sleep. And part of your presentation is to get the judge and jury to trust you, to feel that they would buy a used car (or, in this case, idea) from you. So you have to come across as a person, not a journal article. Similarly, illustrate your points by telling stories about things unrelated to the case. Again, it makes you more human. And it also deepens the explanation of the point and, perhaps at least equally important, gives everybody a brief break from the mental effort of following your technical presentation. Avoid technical terms as much as you can. Most people feel that jargon is the refuge of the pedant, and you do not want to be thought a pedant. And when you have to use a technical term, make a concerted effort to define it. It would help if you could define it by an analogy that the average person could understand. One of the finest examples of this I ever encountered came from a witness in a case I was involved in almost 40 years ago. The witness (unfortunately, not my witness) defined 1 part per million as being equivalent to 1 teaspoon of dye in an Olympic swimming pool. (I have never done the calculation, but have assumed it is in the right order of magnitude.) Now that was an effective analogy, and you should work at building up a supply of them for your unavoidable technical terms.

6.6.6  Other Items to Consider Always remember, from our earlier discussion, to make eye contact with the jury. That is vital. And in the traditional courtroom, remember not to block the view of your beautiful illustrative materials. As a point of interest, if you have an urgent call of nature, the solution is to ask if you can have a 5-minute recess. Everyone will understand the purpose of it. And before your court date, discuss with the attorney how she recommends you dress. The merit of an argument should not be dependent on the appearance of its proponent, but it can be important. Many judges believe that if you are not dressed in a conservative suit, you are showing disrespect for them. And the jury will take its cues from the judge. So discuss this with the attorney in advance.

6.6.7  Effective Response to Cross-Examination The average person, including the average expert, believes it is possible to destroy a witness on cross-examination; this attitude is probably based on watching too many TV courtroom dramas. The average trial lawyer, on the other hand, knows that unless the witness is a pathological liar, it is extremely difficult to shake him or her, and almost impossible to do anything to an expert. So the first tip for you here is not to worry too much about being cross-examined. In fact, it is even possible you will not be cross-examined at all. Remember to watch for the opposing lawyer quoting things out of context (Section 4.6). And also watch for misstatements, either purposeful or inadvertent, of your

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direct testimony. When you think that such a misstatement has occurred, you have the right to ask the court reporter to find exactly what you said and read it back; that is the reason, after all, for having a court reporter present. Similarly, if you are presented with an article you once wrote or testimony you delivered in a different case that appears to contradict you current testimony, all you need to do is explain why your opinion has changed or why the facts here are different. Be sure you understand the question before you start answering it. If you are not certain what is being asked, request that the attorney rephrase the question. If you still are not sure, then you can say, “Ms. Attorney, do you mean to ask me A?” But you should never say, “Ms. Attorney, do you mean A or do you mean B?” There is no good reason to suggest questions to the person cross-examining you. The influence of TV has us all convinced that when a lawyer holds up her hand and says, “Thank you, that will be enough,” that the witness has to stop. That is not true, and it certainly is not true for experts. All you have to do is say, “I am sorry, Ms. Attorney, but I have not finished my answer.” Of course the judge may tell you to stop, but I have never experienced or even been told of that happening to an expert. After all, you are the expert, and you know when you are done with your answer. Make sure to stick to the limits of your specialty. All experts know a great deal about closely related fields, but you should not venture into such areas, as you might not know quite enough. Just say, “I’m a cranial surgeon, not a neurologist,” or “I’m a neurologist, not a psychologist,” or whatever is appropriate in your case. And do not get into a heated argument with the other lawyer. You can disagree with her, but do not let the emotional temperature rise. In the vernacular, “Keep your cool.” Questions on the order of “Have you stopped beating your spouse?” are what lawyers call argumentative questions. If you say yes, that implies that you once did it; if you say no, that implies that you still do it. The solution, of course, is to explain why you cannot answer the question in the form it was presented. It is also legitimate to answer an occasional question with “I don’t know.” But be sure to add “Because I didn’t think it important,” or “But I can find out for you, if you really want to know,” or some other phrase that briefly shows your knowledge and expertise. And, as sometimes happens to everyone, if you know you know the answer but are unable to come up with it, “It’s on the tip of my tongue” is also acceptable. All the above is good advice, but the two most important things to think about when being cross-examined are to repeat your direct testimony and make eye contact. It is not only proper, but quite helpful, to say, in response to a question, “As I explained earlier, I performed these tests because they were the most appropriate for this patient. The tests you are describing are not the correct ones for these symptoms because …” And, just as in your direct testimony, eye contact with the jury or judge is vital. You should look at the attorney when she asks you a question, but then turn and give your answer to the decision maker, not the attorney.

6.7 Conclusion If you have read this entire chapter, you should now be aware that although there are several technical legal issues involved in being an expert witness, not many of them are really major problems to you as a witness. The attorney, on the other hand, might have to work on some of them, but that is why she “earns the big bucks.”

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You can help deal with potential Daubert problems by showing, in your initial report, that what you have done is quite standard. Do this by referencing the authorities in the field. Hopefully, the only pretrial maneuvering you will be involved with will be your deposition, but you should now understand the rest of what goes on at that time. The rules of evidence can set some snares for the unwary, but you should now know enough to make reasonable guesses about where problems lurk, so that you can carry on an intelligent conversation about them with the attorney. And remember to use visual aids and make eye contact.

References Bronstein, D.A. (2007). Law for the Expert Witness, 3rd ed. Boca Raton, FL. Cheng, E.K. and Yoon, A.H. (2005). Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards. 91 Virginia Law Review 471. Federal Rules of Civil Procedure. Federal Rules of Evidence. 706. Federal Judicial Center. Gross, M.D. and Kellogg, J. (2005). Fifty-State and Federal Court Survey of the Standards Governing the Admissibility of Expert Testimony. Paper presented at the ABA Section of Litigation Annual Conference. New York City Incarnati v. Savage. (1982). 329 N.W. 2d 790. Ct. App. Mich. Siemer, D.C. et al. (2002). Effective Use of Courtroom Technology. Notre Dame, IN. U.S. Court of Appeals. (1923). Frey v. U.S. U.S. Supreme Court. (1993). U.S. Supreme Court. (1997). U.S. Supreme Court. (1999). Vickers, A.L. (2005). Daubert: Critique and Interpretation: What Empirical Studies Tell Us about the Application of Daubert. 40 University of South Florida Law Review Rev. 109.

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7

The Forensic Examiner as an Expert Witness What You Need to Know to Be a Credible Witness in an Adversarial Setting Joseph A. Davis, Gregory J. Murrey, and Daniel A. Bronstein

Contents 7.1 7.2

Introduction.................................................................................................. 141 The Medical Professional and the Neuropsychologist as Forensic Expert........................................................................................................... 143 7.2.1 Court-Appointed Forensic Experts................................................... 143 7.2.2 Compensation for the Forensic Expert............................................. 144 7.2.3 Research on Forensic Experts........................................................... 145 7.2.4 Qualities of the Effective Expert...................................................... 146 7.2.5 The Neuropsychologist as Expert Witness....................................... 147 7.3 Practical Issues for the Expert Witness in TBI Cases................................. 150 7.3.1 The Initial Forensic Case Consultation: Duties, Responsibilities, and Being Paid as an Expert Witness.................... 150 7.3.2 The Forensic Expert as Witness and the Ad Hominem Attack......... 151 7.3.3 Advice for the Expert Witness in Forensic Litigation and Consulting Cases............................................................................... 151 7.4 Conclusion.................................................................................................... 154 References............................................................................................................... 155 Suggested Readings................................................................................................ 156

7.1 Introduction Due to advances in research, science, and medicine over the past 75 years, courts, fact finders, and triers of fact have looked for standards of acceptability. In the scientific and medical community, a standard is usually agreed upon by practicing professionals, researchers, and academics from which evidence can be compared

141

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or examined. For example, a specific procedure, technique, and method (or lack thereof) used to perform some operation can be agreed upon as a standard method of operation in examining a patient. Any unusual deviation of such a method can be questioned, particularly if harm or negligence to a patient becomes the legal question to be argued. Expert testimony is not a new phenomenon that has recently entered county, state, or federal criminal cases. “Ever since 1946 there has been a comprehensive federal procedure for court-appointed experts and many states have similar procedures” (Kaplan et al., 1992). Expert witnesses have gained recent notoriety by television exposure of many sensationalized murder cases. With the advent of “CSI,” Court TV–related viewing, and programs involving “trial watch,” viewers can monitor, track, and listen in, right in the comfort of their homes or offices. Due to the advances in forensic science, such as more sensitive neuroimaging technology, psychological analysis, and evidence collection, expert testimony is becoming increasingly important in today’s legal system and in personal injury litigations. Most laypeople today may not understand the legal aspects of expert testimony beyond what they have viewed on television. When it comes to the battle of the experts, the evidence can be lost due to confusion over the two conflicting sides. An easy solution is the use of court-appointed experts; however, they are rarely used, even in high-profile cases. When a trial involves technical or scientific issues of fact, expert witnesses may become very important. “An attorney will use great care in choosing his expert and in preparing for trial” (Kraft, 1982, p. 53). He or she will not necessarily seek one who is most qualified; instead, he will probably choose the expert who will best support his client’s cause, and, perhaps, conceal its weaknesses. The strategy he or she employs may be used with equal skill by his adversary. “The result is a ‘battle of experts,’ the performance often baffles jurors and judges alike, leaving them unable to detect the truth or to pass upon the underlying questions of competency and honesty between the contenders” (Kraft, 1982, p. 53). “The present mode of doing battle by experts has been condemned by various commentators” (Cecil and Willging, 1993). The extreme partisanship of expert witnesses is perceived as its chief evil. The practice of shopping for experts, as stated by the Advisory Committee on the Federal Rules of Evidence, is a matter of deep concern in the administration of justice. More than a century ago, the problem was described by the U.S. Supreme Court, in Winans v. New York & Eric R. R., 1858: Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and what often occurs is that not only many days, but often weeks are consumed in cross-examinations to test the skill or knowledge of such witnesses and the correctness of their opinions, (wasting the time and wearying the patience of both court and jury, and perplexing, instead of elucidating, the questions involved in the issue).

The problem of the battle of the experts seems to be of great importance in our judicial system. Then why are court-appointed experts not used to diffuse this problem? The courts have the power to appoint an impartial expert witness; however, this is done very rarely and only in certain situations.

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7.2 The Medical Professional and the Neuropsychologist as Forensic Expert “The importance of expert testimony, often crucial to the outcome of a trial, has long been known to lawyers and judges” (Kraft, 1982, p. 23). There are literally hundreds, even thousands, of subjects of expert testimony: neuropsychology, medicine, surgery, automobiles, ballistics, blood, accounting, property valuation, genealogy, safety, and others too numerous to mention. By definition, “an expert is a person skilled in some art, trade, or science to the extent that he or she possesses information not within the common knowledge of people” (O’Hara and O’Hara, 1994). The skills or knowledge of an expert may be acquired through experience, study, observation, or education. To be an expert witness, one need not necessarily have a formal education. “[Only] the expert witness is permitted to interpret facts and give opinions about their significance; the lay witness may only present facts which are a matter of first hand knowledge” (Swanson et al., 1988). “The expert witness is called on to assist the jurors in understanding facts which they are ordinarily not sufficiently trained to understand, such as the results of medical examinations, chemical analysis, ballistics reports, and findings from questioned documents” (Anderson, 1987). Thus, an expert’s job is to educate regarding her special field of knowledge. Expert testimony is not proof, but evidence that can be accorded its own credibility and weight by each member of the court.

7.2.1  Court-Appointed Forensic Experts The court may, on its own motion or on the motion of any party, enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. “The judge can either appoint experts agreed upon by the parties or can appoint experts of his own selection” (Kaplan et al., 1992). A court-appointed expert is informed of his or her duties by the judge, either in writing or at a conference where both parties have an opportunity to take part. A courtappointed expert will inform the parties of his or her findings and can thereafter be called to the stand by the trial judge or any party to give testimony. Court-appointed experts are subject to full examination by all parties. “Experts appointed by the trial court are most commonly encountered in cases in which it is suggested either that the accused was legally insane at the time of the offense (NGRI) charged or that the accused is presently incompetent to stand trial (ICST) because of his inability to comprehend the proceedings and cooperate with his defense counsel” (Haddad et al., 1992). When this situation occurs, the court may appoint one or more psychiatrists to examine the accused and to report the results. “The use of a court appointed expert is a means for improving the truth finding process through competence and objectivity” (Kraft, 1982). The expert’s lack of personal interest in the outcome of the case should enhance his or her contribution. If the expert testifies, cross-examination is likely to be limited to the technical issues rather than collateral matters. “Avenues for impeaching the adversary expert by showing that he was hired by a party and is being paid for his opinion, that he is a professional expert witness and the like, will be unavailing” (Kraft, 1982, p. 57). Even before trial, the influence of objective scrutiny is especially valuable in

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p­ reventing or overcoming exaggerated positions. The report on the operation of the Medical Expert Testimony project between 1952 and 1954 concluded that it seems highly probable that the very existence of the project tends to deter doctors and lawyers from making consciously false or grossly exaggerated medical claims. The adoption of Rule 706 of Federal Rules of Evidence Code and corresponding provisions in many states may stimulate the use of court-appointed experts. According to Kraft (1982), litigators should be aware of the following potential benefits offered by court-appointed impartial experts:

1. To assist the triers of fact in reaching a correct result 2. To improve the predictability of the outcome 3. To help in evaluating the case 4. To cast a prophylactic influence on partisan expert reports and testimony, tending to curb excesses 5. To provide qualified, reliable experts who might otherwise refuse to testify 6. To stimulate settlement negotiations by impartial reports on the influence of the above factors 7. To supply testimony that will help shorten the trial

According to Kraft (1982), there is a risk that appointed experts may not, in fact, be impartial. Conscious or unconscious motives may affect their opinions. On crossexamination they may identify with their own opinions and, as a result, introduce a degree of bias. “One antagonist asserts that no one is impartial; therefore, court appointed experts are likely to have biases and prejudices just as other people do” (Kraft, 1982, p. 29). In addition, the existence of bias on other levels is also possible. For example, it has been suggested that the appointment of a local expert will not work in malpractice cases because he may be reluctant to testify against a defendant from the same community. This may explain why medical and dental malpractice cases are excluded from the local court rule applicable to personal injury, disability, and death actions in Bronx and New York counties as adopted by the Appellate Division for the First Judicial Department. Thus, the possibility of bias cannot be ignored, as there is no guarantee that an appointee will have no bias or predilections. This is a factor that must be measured since it adds an element of uncertainty in predicting the ultimate result in the case. “The court’s appointment of the expert, his high competence, and the selection of cases which are amenable to objective, technical analysis should reduce or supplant bias that might otherwise exert its influence” (Kraft, 1982). Another safeguard is the joint selection of an expert by the parties rather than by the court when the parties are able to agree.

7.2.2  Compensation for the Forensic Expert If the forensic expert is an employee of a medical clinic or facility, fees and compensation are routine and a fee structure has typically already been established. If the expert is engaged in private practice, compensation should be set forth in an ­engagement letter (Fisher, 1993). Expert fees vary, as arrangements can be made on a per hour or per day basis, or even by retainer agreement. Fees that expert witnesses

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today charge also can vary, depending on who is doing the engaging for services, such as a public service agency (i.e., district attorney, public defender) or a private civil defense law firm. Witness fees may be determined by experience, complexity of the assignment, or time constraints placed on the expert. Both forensic examiners and legal professionals should be aware that cross-examination of an expert directed at establishing bias through financial interest is allowed (Strong, 1992). According to Strong, the cross-examiner may seek to establish financial interest in the case at hand by reason of remuneration for services, including services performed that enable him to testify, continued employment by a party, or the fact of prior testimony for the same party or the same attorney. Other inquiries allowed by cross-examination of an expert include the amount of previous compensation from the same party and the relation between the expert’s income from testifying for this one party and the total income of the expert. As shown, compensation amounts can raise a new line of questioning regarding the expert witness that do not relate to his or her expert knowledge.

7.2.3  Research on Forensic Experts In a review of expert profiles, Feder (1991) surveyed 160 forensic experts from seven major speciality categories (see Table 7.1 for a summary of the number of respondents by specialty) regarding various issues relative to the expert and forensic cases. Of these experts, 54 responded to the survey. Table 7.2 shows the results of the survey. There are a number of findings that have been derived from this and other studies that may have practical implications for forensic professionals. For example, if a pretrial procedure fails to reveal information necessary to permit a reasonable resolution of the disputed issues, the judge may wish to appoint an expert. However, the Federal Judicial Center’s case study and this author’s own research suggest that such cases will be infrequent and will typically be characterized by evidence that is particularly difficult to comprehend (especially when credible forensic experts find little basis for agreement, resulting in profound failure of the adversarial system, Table 7.1 Survey Results of Forensic Experts Specialty Category Number of Respondents Medicine and psychiatry   9 Economics, sociology, and psychology   9 Accident investigation and reconstruction   6 Construction and engineering 10 Accounting   4 Appraisal 13 Document text interpretation 13 Demonstrative evidence or miscellaneous 13 Total 54 Source: Adapted from Feder, H.A., Succeeding as an Expert Witness, Van Nostrand Reinhold, New York. With permission.

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Table 7.2 Average Responses of Forensic Examiners to Specific Survey Questions Information Average Responses Years serving as forensic expert Total number of cases investigated Depositions given Trials that required testimony Administrative hearings requiring testimony Depositions conducted by experts without attorney Attorney-assisted depositions or testimony (without attorney) Cases where attorney would have been helpful Cases where attorney would not have been helpful Cases for which a written fee and letter were used Cases involving fee disputes with client or attorney

14.6 442.0 79.0 55.5 18.9 36.0 15.4 58.8 17.4 33.9 2.3

Source: Adapted from Feder, H.A., Succeeding as an Expert Witness, Van Nostrand Reinhold, New York. With permission. Note: The averages shown were obtained by totaling the number of responses to each question and then dividing by the number of responses to the particular question.

which cannot, in such cases, provide information necessary to sort through the conflicting claims and interpretations). Judges who had appointed experts emphasized the extraordinary nature of such a procedure and showed no willingness to abandon the adversarial process before it had failed to provide the information necessary to understand the issues and resolve the dispute. Appointment of an expert by the court thus represents a striking departure from the process of presenting information for the resolution of disputes. Such an appointment, however, should not be regarded as a lack of faith in the adversarial system. This author has learned that judges who appoint experts appear to be as devoted to the adversarial system as those who make no such appointments. Most appointments of experts were made after extensive efforts failed to find a means within the adversarial system to gain the information necessary for a reasoned resolution of the dispute.

7.2.4  Qualities of the Effective Expert Davis (1996a) and Feder (1991) give eight qualities that identify the effective, credible expert witness:

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1. The expert must perform a thorough investigation. 2. The expert must be personable, genuine, and natural. 3. The expert must have an ability to teach. 4. The expert must be generally competent. 5. The expert must be believable. 6. The expert must persuade without advocacy. 7. The expert must be prepared. 8. The expert must demonstrate enthusiasm.

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Visual aids, such as large charts or overheads that can be presented by the attorney or forensic witness for the jurors and judge to refer to, can also be invaluable in traumatic brain injury (TBI) cases. Such aids help the jurors and judge to remain attentive and to better understand sometimes complex or even technical information and data. The following is a list of visual aids that could be used by the forensic examiner or legal professional during deposition or testimony:

1. Medical or legal definitions or criteria for TBI, particularly mild TBI (see Table 1.2 in Chapter 1) 2. Brief definitions of specific medical terms associated with TBI (e.g., closed head injury, concussion, postconcussional syndrome, amnestic disorder, etc.) 3. A list of common chronic symptoms following TBI (see Table 1.6 in Chapter 1) 4. A checklist of the examinee’s documented symptoms, injuries, and medical problems postinjury 5. A chart showing the examinee’s medical, psychological/emotional, cognitive, and functional status and abilities, pre- and postinjury (listing pre- and postinjury status side-by-side for comparison) 6. A list of examinee performance and impairment level (mild, moderate, severe) by specific neuropsychological or cognitive function (see Appendix A) 7. Chronological history of evaluations and diagnoses of the examinee 8. A comparison of findings between two or more examiners (e.g., neurologist, psychologist, neuropsychologist, etc.) 9. Enlarged, simplified illustration of the brain and skull designating site(s) of injury 10. List of neuroimaging studies or technology (e.g., computer tomography (CT), magnetic resonance imaging (MRI), electroencephalogram (EEG), positron emission tomography (PET), etc.) with brief definitions of each or findings specific to the TBI case

Visual aids should be clear and concise, preferably in bullet format with large print or design. The visual aids should not overload the jury with too much information. Also, when a jury is present, the expert should always make an effort to maintain eye contact with and face toward the jurors. If the forensic examiner can become knowledgeable and experienced in the use of such aids and approaches, the more effective he or she will be as an expert witness.

7.2.5  The Neuropsychologist as Expert Witness The expert witness is typically an individual specifically recognized by the court as having education, experience, training, and knowledge beyond that of the trier of fact, i.e., the jury and the court, to assist in rendering an opinion on a particular subject, topic, or issue. To be an expert does not necessarily mean that you have more knowledge in the real world than anyone. What it does mean is that you are recognized as having special knowledge to explain complicated methods and procedures,

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technical matters, and data, as well as the ability to interpret and render an objective opinion about a certain set of facts or information to the court. Often, the practicing neuropsychologist as forensic scientist will be called upon to render an opinion as to medical procedure, protocol, diagnosis, and treatment (or lack thereof, as in malpractice), as well as to specific degrees of medical certainty as it relates to a clinical trial, and the application of a procedure as it relates to rehabilitation and recovery outcomes. In our American judicial system, the adversarial process means that an attorney represents his or her viewpoint of a legal issue while the other attorney argues and represents the opposing side of that issue. In addition to opposing arguments, the adversarial system also includes procedures involving deposition and, of course, trials, to include pretrial evidentiary hearings and posttrial hearings involving sentencing. Typically, when opposing attorneys call and examine experts for their proffered opinions, there are oftentimes conflicts between legal counsel and the medical practitioner or forensic scientist. These conflicts can be avoided by remembering to be a neutral party and always an objective scientist who is, for all practical purposes, genuinely disinterested in the outcome of the case, regardless of who calls you to the stand to testify. And, regardless of the situation, issue, or case, always remain an objective scientist. The neuropsychologist as a forensic examiner is not an advocate or a legal adversary (that is the function of the attorneys). To testify as a matter of course in a deposition or a trial is to always render your opinion with integrity and truthfulness regardless of the negative or positive impact it may have. An important issue for a neuropsychologist in forensic cases is the clarification of the difference between a neurologist and a neuropsychologist. A clinical neuropsychologist is a licensed doctoral-level trained clinical psychologist who has received extensive speciality training in brain behavior relationships in the assessment of cognitive or higher cortical brain functions such as attention, memory, and learning, visual spatial abilities, and planning and problem solving. A neuropsychologist is trained in neuroanatomy, neurophysiology, and behavioral neurology. Although neither a medical doctor nor able to prescribe medications, the neuropsychologist is trained in determining clinical diagnoses of psychological and cognitive disorders (secondary to or associated with central nervous system disorders). The neuropsychologist is also trained in the assessment of TBI and other neurological disorders through the use of standardized neuropsychological test batteries. There are currently two primary organizations that provide board certification to clinical neuropsychologists: the American Board of Professional Psychology (Clinical Neuropsychology) and the American Board of Professional Neuropsychology. Both organizations conduct a thorough review of the professional’s training, experience, and credentials, as well as in-depth testing of the potential diplomate (see Table 7.3 for the standard background and qualifications for a forensic neuropsychologist). Although board certification is not required of or obtained by all qualified clinical neuropsychologists, it is of particular importance in the forensic setting, by which the clinician is able to establish his or her credibility and qualification as an expert witness in this speciality area. The attorney initially questioning the forensic ­neuropsychologist during deposition or trial will almost always ask the professional

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Table 7.3 Standard Background, Training, and Qualifications of a Forensic Neuropsychologist 1. Doctoral degree in clinical psychology 2. State licensure as a psychologist at the independent practitioner level 3. Specialized course work and training in the following areas: a. Neuroanatomy and neurophysiology b. Behavioral neurology c. Neuropathology d. Neuropsychological assessment 4. Minimum of 2 years (1 year of which may include the predoctoral internship training) clinical experience in neuropsychology under the direct supervision of a qualified clinical neuropsychologist 5. The majority of the clinician’s time must be spent in the practice of neuropsychology (including neuropsychological assessment, consultation, rehabilitation, and therapy of persons with neurological, medical, or neuropsychological disorders) 6. Diplomate (board certification) status through the American Board of Clinical Neuropsychology or the American Board of Professional Neuropsychology, which demonstrates the highest level of expertise in the field of neuropsychology Source: Adapted from the Guidelines for Training of Division 40 of the American Psychological Association, and Guidelines for board certification from the American Board of Professional Neuropsychology and the American Board of Clinical Neuropsychology.

to define what is a neuropsychologist and how that profession differs from neurology. The following statement is an appropriate response by the neuropsychologist to such questions: As a neuropsychologist, I am trained in the use of standardized tests and measures to assess functioning in such areas as memory, concentration, attention, planning, problem solving, speech, language, and other brain functions; whereas the neurologist holds a medical degree, I am a licensed psychologist with a doctoral degree in clinical psychology and specialty training in neuropsychology.

One example the author uses to personally illustrate the difference between neurology and neuropsychology to the jury is that of an auto mechanic. When your car is not functioning properly, you take it to an auto mechanic, who first conducts a computerized analysis of the engine. At this point, the auto mechanic may or may not find something diagnostically wrong with your car. This is very similar to what a neurologist does. The neurologist will often use highly technical diagnostic equipment, such as CT scans or MRIs, to see if there are any visible lesions or damage to the brain. The neurologist may or may not find structural damage to the brain. In either case, the person, like the car, needs to be taken out for a test drive to see if there are any functional problems. This is where I come in as a neuropsychologist. Like a mechanic, I take the subject out for a “test drive” — that is, I assess how the person is functioning, something that the neurodiagnostic studies, such as the CT scan or MRI, cannot tell you.

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7.3 Practical Issues for the Expert Witness in TBI Cases 7.3.1  The Initial Forensic Case Consultation:   Duties, Responsibilities, and Being Paid as an Expert Witness In all matters pertaining to the engagement of the expert witness physician or medical scientist, a request for any and all material relating to the case is imperative to your understanding and proffered objective opinion of the case. Attorneys typically work in nature to design questions that can be answered in a yes or no response pattern. If a question cannot be answered in that manner, the expert should tell the attorney that the question cannot be answered with a yes or no response. If the expert cannot answer the question, he or she should state such, as opposed to looking for an answer that sounds pseudoprofessional and appears plausible or feasible. The expert should never testify outside the boundaries of the well-defined area of expertise established by the forensic examiner’s specific profession. The expert’s well-defined area of expertise is limited to knowing a tremendous amount of information about something very small in terms of subject matter or content applicable to the particular case. If not, anyone and everyone could potentially offer an opinion and give testimony about TBI, neuropsychology examination, medical treatment, or neurorehabilitation. In regards to the initial attorney–expert consultation, it is the responsibility of the medical professional to request the material needed during that initial contact (provided the attorney has agreed to engage the professional as a designated expert). The expert should not let the attorney tell him or her what is needed. If the professional in the field of medicine or neuropsychology is unsure of what exactly is needed, the expert should listen to the attorney’s theory of the case and ask precise questions in terms of how the case involves the expert opinion. The expert should refrain from giving an opinion based on his or her own theory. The forensic expert should request the needed materials from the attorney and meticulously review the record for key data and facts. Before the close of the initial attorney–expert phone consultation, the expert should discuss matters pertaining to fee structure (for research, record review, travel, on-call or standby, deposition, and trial) and procedures for submitting an invoice of billable hours. Some experts charge based on the demands of the case on their professional time. Although it varies from expert to expert, some charge per hour, while others charge by day or half day. Some forensic examiners charge by being placed on a retainer, which is based on a projected dollar estimate from the time one will spend on the case. The expert must keep the attorney informed of the status of the initial retainer, as it will eventually run out. When the retainer is depleted, the forensic expert should inform the attorney, and a new estimate for a revised retainer should be submitted. As a matter of choice, this author recommends that an expert never take a case on a contingency fee basis, as the expert should have no invested interest in the case other than to provide an expert, scientifically or medically grounded opinion. Finally, charging for phone calls, postage, envelopes, paper, pencils, copy services, and supplies is, at best, discretionary on the part of the expert. Invariably, one can only estimate how much time it will take in any case. However, the expert should be as precise and practical as possible when it comes to travel, research, reading, and pretrial preparation time of the case. However, the expert’s time is valuable. Typically, no one spends 1 hour in court. In most TBI cases, the

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expert will spend the majority of the day away from the hospital or practice setting. The expert should charge for time while on the phone discussing the case with the attorney or paralegal, for pretrial preparation, travel time, and court time (including time spent waiting to be called and while on the stand). Often the opposing attorney will request the expert’s presence for a deposition. In such cases, the opposing counsel pays for the expert’s time at the end of the deposition. It is good practice to ensure that payment is made before leaving the deposition unless other arrangements have been made in advance. Typically experts are only paid for the time in deposition and not for travel or predeposition preparation, which is typically billed to the attorney who has engaged the expert in the first place. In any case, keep a precise record of your time and bill the attorney for your pretrial research, phone consultation, and trial time.

7.3.2  The Forensic Expert as Witness and the Ad Hominem Attack The ad hominem legal attack oftentimes involves the attack of the credibility of an expert witness. Many witnesses, including this author, interpret this as an assault on the personal and professional integrity of the expert. In fact, that is exactly the design, intent, and purpose of an ad hominem attack. The attack, in scope, is an attempt by those cross-examining (opposing) to upset the expert witness when the expert’s opinion on a particular point appears weak or, in some cases, unpenetrable. Such attacks are often made when a case is impossible to defend and the attorney needs to develop new avenues or approaches to litigating the personal injury case. There are four things the expert needs to know in regard to the ad hominem attack:



1. The ad hominem attack is typically not a personal attack on you per se; rather, it is just a clinical strategy designed to annoy, emote, distract, and even change the demeanor and court “professional face” (trial disposition) of the expert. 2. The expert should always remain calm and in control despite the seemingly unruly character of the attorney. 3. Complete all sentences and answers from the questions asked by the attorney (unless directed not to by the judge or the attorney who has retained you). 4. The expert should refuse to submit to any ploys, such as game playing, that involve estimates, formulas, numbers, or percentages.

Throughout the attack, the expert should always remain consistent in his or her opinion, particularly when citing technical books and respected treatises or medical doctrines that may have been quoted out of context by the attorney. Maintaining a professional demeanor is critical. The expert has the advantage when an ad hominem attack is launched by the attorney. Hostile attorneys can and will be confronted by the court (judge) if they are out of line.

7.3.3  Advice for the Expert Witness in Forensic Litigation and Consulting Cases When an expert is engaged or retained as a forensic expert, the following are some practical points, tips, and business guidelines that the author has found to be effective:

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• Make sure you have a letter of engagement from the attorney or firm on their letterhead requesting your mental health opinion regarding the case. • Provide the firm or agency with a follow-up letter on your letterhead to confirm the engagement, to include a disclaimer that you cannot guarantee the outcome of any trial regardless of your opinion, expertise, credentials, and experience. • Provide the engaging attorney or agency with your curriculum vitae (CV) and biographical statement. Be very brief (even if you are greatly accomplished), as a lengthy CV in court can make you appear as a “hired gun.” • Let the attorney present your credentials in court. The opposing attorney can object as to the necessity of your appearance and try to disqualify you. Ultimately, the judge (the court) decides if you meet the definition of an expert in your field, which is generally based upon the Federal Rules of Evidence (FRE) Code (Federal Judicial Center, 1994). • Make sure from the beginning that you are clear as to what party, i.e., attorney, agency, firm, etc., is underwriting your expenses. Set and establish the fee structure up front, i.e., across the board or door to door, as fees are generally different for evidence review, pretrial work, deposition and trial, report writing, etc. • Never be inconsistent about your fee structure. Once establishing a fee for expert services, honor it. The matter of fees for services can be problematic, so keep them simple. Fee structures can be staggered, depending on the task and level of involvement, or straight across the board. • Get your fee up front if possible, unless you are retained by a large, reputable agency or firm. • If your involvement in the case is limited, i.e., record review, set an equitable time for your involvement and bill for only that time. If you are required to appear at deposition, clarify who is making the request (most often opposing counsel) and be sure to be paid immediately after the deposition is completed. • If you are needed again, such as to appear during trial, establish this early with the attorney who has hired you, as the fee for trial-related work is generally higher. Ask for a reasonable retainer from the attorney or firm and bill from there if you feel more comfortable having expenses paid for up front. • Always ask for a retainer. If that is not possible, then ask the firm, agency, attorney, or fiscal officer if they provide itemized billing sheets and when you should submit them, i.e., every 2 weeks, monthly, etc. • If itemized billing sheets are not used, regardless of the firm or attorney, always keep meticulous records of your time and involvement in the case and submit your billing in accordance with what has been arranged between you and the firm or attorney of record engaging your services.

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• With inexperienced trial attorneys or new attorneys, be polite and give professional guidance related to your area of expertise (neuropsychology, psychology, neurology, rehabilitation medicine, etc.). • You do not have to work pro bono. At the time of deposition, get your work on record and stop when it is time to stop. • Do not be inconsistent on your expert opinion. If you must change your opinion, tell the attorney as soon as possible and substantiate why you feel your impression or opinion has changed. • Do not place notes in the case file regarding conversations you have had with your attorney. Keep only those notes that pertain to the case itself. These notes can be used by the opposing attorney during the process of discovery. • Never expose or disclose cases on which you have been consulted in the past 6 months, especially if you have not been designated or retained as the expert in that case. • Form a solid clinical and forensic opinion and stay with it. Do not be pressured to change it for whatever reason. If you must change your opinion, inform the attorney of record immediately and stipulate why this is grounded in scientific basis or fact. • Keep the legal firm or attorney who retained you aware of your time involving billing hours. Problems may arise with very large bills, especially with public service offices (i.e., district attorney, public defender, etc.). • Never give your opinions to other experts. Remember, you never know who may be listening with great interest. Your opinion is confidential and should only be disclosed under certain prescribed conditions (i.e., pretrial counsel, deposition, or during the actual trial). • When you make a promise to the legal firm, agency, or attorney, try to keep that commitment if possible. The attorney may have made promises to the other agencies, attorneys, judges, and trial court. • When preparing for deposition, know your case and file well. Review it frequently and as often as possible. Your additional review for your own comfort zone and confidence level must not be confused with your initial review of the record for purposes of payment. Always remember that a review of the scientific evidence or record is to get information, provide clarification, and provide foundation for your opinion. Additional review of the record might serve to decrease your own anxiety over the case, but is not a basis for additional billing. Use common sense and be practical. Read the case thoroughly the first time for background and information and record your involvement. Then, as a matter of course, you may wish to reread the case as necessary to glean specific facts that might involve foundation for your forensic opinion. However, that is your time, and a second review is standard practice right before deposition and trial. Remember, any notes you make on the actual record or on paper can be used in deposition and trial. • During the trial, always remember that the judge and jury are your audience. Direct your attention, eye contact, voice projection, body language, and responses in their direction. In general, they do not like experts per se, but experts are an understood part of the adversarial system.

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• At trial, remain calm. Try to talk and project your voice moderately at a rate that is coherent and relaxed. Practice and cognitively visualize (in vitro) your appearance before you go to court, which can desensitize you and minimize the anxiety response in the actual (in vivo) situation when the court date arrives. • Use layperson terminology (nomenclature), especially when discussing diagnostic procedures, techniques, methods, etc. Coach the attorney when a medical/scientific term must be used. In all cases, strive to always explain difficult material in a simple way so no one in court feels alienated in a way that only you know what you are talking about. That is the art of testifying as an expert, which cannot be overemphasized here. • Do not try to impress or overwhelm the jury or judge with your clinical knowledge and intuition. Keep it simple. In the end, “psychobabble” and technical International Classification of Disease, 9th revision (ICD-9)– or Diagnostic and Statistical Manual of Mental Disorders (DSM)–type nomenclature can work against you and the case. If a clinical or medicolegal term must be introduced, do so, but with considerable judgment, academic wisdom, clarification, and the understanding that you are not talking to jurors with doctorate or medical degrees. • Have a pretrial case consultation with your attorney before court so you are on the same page. • If the attorney of record does not ask you the questions you would like, assist him or her during this phase of the trial during direct or redirect testimony. • When you put a note in your record, always think how the opposing attorney could us it to confront or cross-examine you as a means to damage your position in trial. If your testimony is damaged, rehabilitation by counsel is certain, which generally calls for another expert to provide damage control around your testimony. In general, keep all your clinical notes (impressions) in your head. Remember, your thoughts cannot be subpoenaed or sequestered. • Dress and look conservatively, and always act in a professional manner. • Do not purge your case file immediately. Keep a file of the forensic examination for 1 or 2 years. Remember, a legal appeal might be forthcoming. If you are concerned about the life of the case file, contact the attorney or agency who engaged you. • Do not surrender the file to anyone. Similar to patient records, shred the original record to ensure protection of yourself and the client (i.e., agency, firm, etc.).

7.4 Conclusion Research findings show that the appointment of an expert is a very complicated issue. Various factors must be taken into account before we understand why an expert is or is not selected or appointed. As the technology concerning the expert witness grows and improves, it is important for the judicial system to keep pace. In the near future, courtappointed experts may be needed in a greater number of cases, and judges will need to be aware of the issues and rules concerning the appointment of a court expert.

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In summary, the best advice the authors of this chapter can give to a forensic expert involved in a personal injury case is to be thoroughly knowledgeable of the case, the facts of the case, and organize your preparation around those facts. The expert needs to stay in close contact with the attorney who has engaged him or her during the case, and as new developments surface, the expert needs to review the case and new documents. Points among conversations, depositions, and trial can often become unclear and confusing. Ultimately, however, it is the responsibility of the attorney to prepare the forensic expert for trial, and it is the expert’s duty to inform the attorney if his or her opinion has changed based on new evidence or from the facts surrounding the case. Finally, the expert need only be honest, neutral, disinterested, and, above all, objective in his or her opinion as a scientist and practitioner.

References Anderson, P.R. (1987). Expert Witnesses. State University of New York Press, Albany. Cecil, J.S. and Willging, T.E. (1993). Court Appointed Experts. Defining the role of experts appointed under Federal Rule of Evidence 706. Federal Judicial Center. Cooke, G. (1980). The Role of the Forensic Psychologist. Charles C. Thomas, Springfield, IL. Davis, J.A. (1996a). On the stand: the expert witness. Part II. Journal of the Forensic Examiner, 5. Davis, J.A. (1996b). On the stand: the expert witness. Part I. Journal of the Forensic Examiner, 5. Davis, J.A. (1996c). On the stand: the expert witness. An introduction. Journal of the Forensic Examiner, 5. Davis, J.H. (1986). Peer review in the courtroom. Journal of Forensic Sciences, 31, 803–804. Dorran, P.B. (1982). The Expert Witness. Planners Press, Chicago. Eckert, W.G. (1984). Medicolegal (forensic) examination: don’t go beyond your competence. American Journal of Medical Pathology, 5, 5–6. Ewing, C.P. (1985). Psychology, Psychiatry, and the Law. Professional Resource Exchange, Inc., Sarasota, FL, pp. 389–410. Feder, H.A. (1991). Succeeding as an Expert Witness. Van Nostrand Reinhold, New York. Federal Judicial Center. (1994). Reference Manual on Scientific Evidence. Federal Judicial Center, Washington, DC. Fisher, B.A. (1993). Techniques of Crime Scene Investigation. CRC Press LLC, Boca Raton, FL, pp. 22–24. Fox, G.D. (1986). Compelling expert testimony: can (and should) you do it? Florida Bar Journal, 60, 69–71. French, A.P. (1984). The expert witness. JAMA, 245, 361. General Electric v. Joyner. 117, S. Ct. 1243 (1997); Fine Law, No. 96-188 (December 18, 1997). Haddad, J.B., Zagel, J.B., Starkman G.L., and Bauer, W.J. (1992). Criminal Procedure. The Foundation Press, Inc., Westbury, NY, pp. 338–350. Howard, L.B. (1986). The dichotomy of the expert witness. Journal of Forensic Sciences, 31, 337–341. Kaplan, J., Waltz, J.R., and Roger, C.P. (1992). Evidence. The Foundation Press, Inc., Westbury, NY, pp. 764–775. Kraft, M.D. (1982). Using Experts in Civil Cases. Practicing Law Institute, New York. Labowitz, D.I. (1988). Getting involved in the legal system: choice or chance? Clinical Chemistry, 34, 460–463.

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Lewis, A.A. (1984). The Evidence Never Lies. Holt, Rinehart, and Winston, New York. Lundberg, G.D. (1984). Expert witness for whom? JAMA, 252, 251. McKracken, D.D. (1971). Public Policy and the Expert. Ethical Problems of the Witness. The Council on Religion and International Affairs, New York. O’Hara, C.E. and O’Hara, G.L. (1994). Fundamentals of Criminal Investigation. Charles C. Thomas, Springfield, IL, pp. 649–670. Peterson, J.L. (1975). Scientific Investigation in Criminal Justice. AMS Press, Inc., New York. Reed, J. (1999). Current status of the admissibility of expert testimony after Daubert and Joiner. Journal of Forensic Neuropsychology, 1, 49–69. Shapiro, D.L. (1984). Psychological Evaluation and Expert Testimony. Van Nostrand Reinhold, New York. Sperber, N.D. (1981). Forensic odontology. In Scientific and Expert Evidence. Practicing Law Institute, pp. 721–754. Spitz, W.U. and Fisher, R.S. (1993). Guidelines for the Application of Pathology to Crime Investigation. Medicolegal Investigation of Death. Charles C. Thomas, Springfield, IL. Strong, J.W. (1992). McCormick on Evidence. West Publishing Co., St. Paul, MN, pp. 19–30. Swanson, C.R., Chamelin, N.C., and Territo, L. (1988). Criminal Investigation. Random House, New York, pp. 581–583. Wentworth, P. and Carson, J. (1988). Remember one main rule when called to testify: be prepared. Journal of the Canadian Medical Association, 138, 843–845. Wetli, C.V. (1988). On Being an Expert Witness. Laboratory Medicine, pp. 545–550.

Suggested Readings Moenssens, A.A., Starrs, J.E., Henderson, C.E., and Inbau, F.E. (1995). Scientific Evidence and Expert Testimony, 4th ed. Foundation Press, Inc., Westbury, NY. Waltz, J.R. and Park, R.C. (1995). Evidence: Cases and Materials, 8th ed., University Casebook Series. Foundation Press, Inc., Westbury, NY. Ziskin, J. and Foust, D. (1988). Coping with Psychiatric and Psychological Testimony, Vol. I. Law and Psychiatry Press, Inc., Marina del Rey, CA. Ziskin, J. and Foust, D. (1988). Coping with Psychiatric and Psychological Testimony, Vol. II. Law and Psychiatry Press, Inc., Marina del Rey, CA. Ziskin, J. and Foust, D. (1988). Coping with Psychiatric and Psychological Testimony, Vol. III. Law and Psychiatry Press, Inc., Marina del Rey, CA.

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Appendix A: Model Outline for the Assessment of Mild Traumatic Brain Injury The following is a model outline for assessment of mild traumatic brain injury (TBI) cases by a forensic examiner to determine if the examinee meets the criteria for mild TBI: Review of postinjury documents and reports:

1. Police report at scene of accident 2. Ambulance report 3. Emergency room and hospital record 4. Inpatient or outpatient physician consultation/evaluation or follow-up notes 5. Chiropractor evaluation and treatment notes 6. Professional (physical, occupational, and speech therapies and nursing progress) evaluation and treatment reports 7. Psychological evaluation and treatment reports 8. Neuropsychological consultation and testing result reports 9. Clinical interview

Assessment issues:

• • • • •

Date of injury Age at time of injury Reports from spouse/significant others Documented loss or change in level of consciousness Glasgow Coma Scale (GCS) score: • Date(s): _____________ • Reporter(s): __________ • Galveston Orientation and Amnesia Test score (GOAT): • Date(s): _____________ • Reporter(s): __________ 157

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• Report of alteration in mental state:   _____  Yes  _____  No • Date(s): _____________ • Reporter(s): __________ • Length of time: ________ • Posttraumatic amnesia: • Date(s): _____________ • Reporter(s): __________ • Anterograde amnesia/length of time: ________ • Retrograde amnesia/length of time: _________ • Neuroimaging studies: • Head CT: • Date(s):        _____  Normal   _____  Abnormal • Head MRI: • Date(s):        _____  Normal   _____  Abnormal • EEG: • Date(s):        _____  Normal   _____  Abnormal • Current medications   •  Date started •  ____________    •  ____________ •  ____________    •  ____________ •  ____________    •  ____________ •  ____________    •  ____________ •  ____________    •  ____________ • Postinjury seizures:  _____  Yes  _____  No • Other neurological findings: • Concussion:  _____  Yes  _____  No • Date(s):  _____________ • Reporter(s):  __________ • Hematoma:  _____  Yes  _____  No • Date(s):  _____________ • Reporter(s):  __________ • Closed head injury • List of other neurological diagnoses: __________________________________ ____________________________________________________________________ • Date(s): _____________ • Reporter(s): __________ • Symptom complaints: ___________________________________________________ __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ _______________________________________________________________________

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• Neuropsychological test results/date: __________________________________



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Significantly Mildly Low- Highimpaired impaired normal Normal normal



Attention and concentration



Mental flexibility

Working memory Verbal memory Visual memory Speech-language abilities Psychomotor functioning Visual spatial abilities Executive functioning

_____ _____ _____ _____

_____ _____ _____ _____

_____ _____ _____ _____

_____ _____ _____ _____

_____ _____ _____ _____

_____ _____ _____ _____ _____

_____ _____ _____ _____ _____

_____ _____ _____ _____ _____

_____ _____ _____ _____ _____

_____ _____ _____ _____ _____



• Premorbid IQ estimate: • Below average • Low average • Average • High average plus



• Physical symptoms        • Headache  • Dizziness  • Visual difficulties  • Sleep disturbance  • Fatigue  • Other 



• Cognitive symptoms      Date first reported • Short-term memory loss ___________ • Forgetfulness ___________ • Slow mental speed ___________ • Decreased impulse control ___________ • High distractibility ___________ • Poor attention ___________ • Problem solving and planning difficulties ___________ • Word-finding difficulties ___________ • Poor judgment ___________ • Other ___________

Date first reported ___________ ___________ ___________ ___________ ___________ ___________

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• Emotional/psychological symptoms Date first reported • Mood swings ___________ • Irritability ___________ • Suicidal thoughts ___________ • Anxious mood ___________ • Decreased libido ___________ • Other ___________ • Review of preinjury history and reports: • Documents to be reviewed: • Developmental history • School records and transcripts • Standardized test scores • Military history (standardized tests or training) • Vocational history • Medical history • Psychological/psychiatric history • Family medical and psychiatric history • Assessment issues: • Academic achievement: • Developmental learning disability: • Type: _____________    Date Documented: _____________ • Completed high school/GPA: _____________ • College training/years/GPA: _____________ • Preinjury IQ test/date: ___________    FSIQ Score: __________ • Standardized Achievement Test (SAT): • Type: ________________ • Date: ________________ • Scores: ______________ • Vocational history: • Current position/title:  •   Laborer  •   Technical  •   Professional • History of preexisting medical conditions • History of TBI: • Date(s): _____________ • Severity: ____________

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Appendix A



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• Seizure disorder: • Date(s): _____________ • Other neurologic condition • Medical problems/diagnoses: • Date(s): _____________ • Psychiatric diagnoses: • Date(s): _____________ • Psychopharmacological treatment/type: • Date(s): _____________ • Psychotherapy/counseling: • Date(s): _____________ • Examinee meets American Congress of Rehabilitation Medicine definition for mild TBI (meets at least one of the following criteria): • Any period of loss of consciousness of less than 30 minutes and Glasgow Coma Scale of 13 to 15 • Retrograde or anterograde amnesia with PTA of less than 24 hours • Alteration in mental state at time of accident (dazed, disoriented, confused) • Focal and neurological deficits, transient or permanent • Examinee meets criteria for the following DSM-IV criteria: • Amnestic disorder due to TBI • Cognitive disorder, not otherwise specified • Personality change due to TBI • Mood disorder due to TBI • Anxiety disorder due to TBI • Adjustment disorder • Other: _________________________

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Appendix B: Select Issues in the Forensic Assessment of Traumatic Brain Injury with Key References from the Research Literature Definitions of and Criteria for Traumatic Brain Injury (TBI) American Congress of Rehabilitation Medicine. (1993). Definition of mild traumatic brain injury. Journal of Head Trauma Rehabilitation, 8, 86–87. American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders, 4th ed. American Psychiatric Association, Washington, DC. Evans, R.W. (1992). Mild traumatic brain injury. Physical Medicine and Rehabilitation Clinics of North American, 3, 427–439. Esselman, P.C. and Uomoto, J.M. (1995). Classification of the spectrum of mild traumatic brain injury. Brain Injury, 9, 417–424. Medicode, Inc. (1998). International Classification of Disease, 9th revision. Medicode, Inc., Salt Lake City, UT, Section 850. Teasdale, G. and Jennett, B. (1974). Assessment of coma and impaired consciousness: a practical scale. Lancet, 2, 81–84.

Neuropsychological Impairment and Neuroimaging Studies Anderson, C.V., Wood, D.M., Bigler, E.D., and Blatter, D.D. (1996). Lesion volume, injury severity, and thalamic integrity following head injury. Journal of Neurotrauma, 12, 35–40. Gale, S.D., Johnson, S.C., Bigler, E.D., and Blatter, D.D. (1995). Trauma-induced degenerative changes in brain injury: a morphometric analysis of three patients with pre-injury and post-injury MR scans. Journal of Neurotrauma, 12, 151–158. Eslinger, P.J., Damasio, H., Radford, N.D., and Damasio, A.R. (1984). Examining the relationship between computer tomography and neuropsychological measures in normal and demented elderly. Journal of Neurology, Neurosurgery and Psychiatry, 12, 1319–1325. Thatcher, R.W., Camacho, M., Salazar, A., Linden, C., Biver, C., and Clarke, I. (1997). Quantitative MRI of the gray-white matter distribution in traumatic brain injury. Journal of Neurotrauma, 14, 1–14. Wilson, J. and Wyper, D. (1992). Neuroimaging and neuropsychological functioning following closed head injury: CT, MRI and SPECT. Journal of Head Trauma Rehabilitation, 7, 29–39.

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Neuropsychological Base Rates and TBI Dikman, S., Machamer, J., Winn, H.R., and Temkin, N. (1995). Neuropsychological outcome at one year post head injury. Neuropsychology, 9, 80–90. Lees-Haley, P.R. and Brown, R.S. (1993). Neuropsychological complaint base rates of 170 personal injury claimants. Archives of Clinical Neuropsychology, 8, 203–209. Nemeth, A.J. (1996). Behavior-descriptive data on cognitive, personality and somatic residua after relatively mild brain trauma: studying the syndrome as a whole. Archives of Clinical Neuropsychology, 11, 677–695. Palmer, B., Boone, K., Lesser, I., and Wohl, M. (1998). Base rates of “impaired” neuropsychological test performance among healthy older adults. Archives of Clinical Neuropsychology, 13, 503–511.

Neuropsychological Recovery and Outcome Post-TBI Dikman, S. and Levin, H. (1993). Methodological issues in the study of mild head injury. Journal of Head Trauma Rehabilitation, 8, 30–37. Dikman, S., Machamer, J., Winn, H.R., and Temkin, N. (1995). Neuropsychological outcome at one year post head injury. Neuropsychology, 9, 80–90. Gale, S.D., Johnson, S.C., Bigler, E.D., and Blatter, D.D. (1995). Trauma-induced degenerative changes in brain injury: a morphometric analysis of three patients with pre-injury and post-injury MR scans. Journal of Neurotrauma, 12, 151–158. Nemeth, A.J. (1996). Behavior-descriptive data on cognitive, personality and somatic residua after relatively mild brain trauma: studying the syndrome as a whole. Archives of Clinical Neuropsychology, 11, 677–695. Prigatano, G.P. and Altman, I.M. (1990). Impaired awareness of behavioral limitations after traumatic brain injury. Archives of Physical Medicine and Rehabilitations, 71, 1058–1064. Prigatano, G.P. and Fordyce, D.J. (1986). Cognitive dysfunction and psychosocial adjustment after brain injury. In Neuropsychological Rehabilitation after Brain Injury, Prigatano, G.P., Fordyce, D.J., and Zeiner, H.K., Eds. Johns Hopkins University Press, Baltimore. Willer, B., Rosenthal, M., Kreutzer, J.S., Gordon, W.A., and Rempel, R. (1993). Assessment of community integration following rehabilitation for traumatic brain injury. Journal of Head Trauma Rehabilitation, 8, 75–87.

TBI and the MMPI-2 Alphona, D.P, Finlayson, A.J., Stearns, G.M., and Elison, P.M. (1990). The MMPI in neurologic dysfunction: profile configuration and analysis. The Clinical Neuropsychologist, 4, 69–79. Lees-Haley, P.R. (1991). MMPI-II F and F-K. Scores of personal injury malingerers in vocational neuropsychological and emotional distress claims. American Journal of Forensic Psychology, 9, 5–14. Levin, H.S., Gass, C., and Wold, H. (1997). MMPI-II interpretation in closed-head trauma. Crossed validation of a correction factor. Archives of Clinical Neuropsychology, 12, 199–205. Paniak, C.E. and Miller, H.B. (1993). Utility of MMPI-2 Validity Scales with Brain Injury Survivors. Paper presented at the meeting of the National Academy of Neuropsychology, Phoenix, AZ, October 28–30. Peck, E., Mitchell, S., Burke, E., Baber, C., and Schwartz, S. (1993). Normative Data for 463 Head Injury Patients for the MMPI, BDI, and SCL-90 Tests across Three Time Periods Post-Injury. Poster presented at the 21st Annual Meeting of the International Neuropsychological Society, Galveston, TX, February 24.

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Appendix B

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Scott, J., Emick, M., and Adams, R. (1999). The MMPI-II and closed head injury: effects of litigation and head injury severity. Journal of Forensic Neuropsychology, 1, 3–13. Youngjohn, J., Davis, D., and Wolfe, I. (1997). Head injury and the MMPI-II: paradoxical severity effects and the influence of litigation. Psychological Assessment, 9, 177–184.

The Forensic Assessment of Malingering Binder, L.M. (1993). Assessment of malingering after mild head trauma with the Portland Digit Recognition Test. Journal of Clinical and Experimental Neuropsychology, 15, 170–182. Franzen, M.D., Iverson, G.L., and McCracken, L.M. (1990). Detection of malingering in neuropsychological assessment. Neuropsychology Review, 1, 247–279. Frederick, R.I., Carter, M., and Powel, J. (1995). Adapting symptom validity testing to evaluate suspicious complaints of amnesia in medicolegal evaluations. Bulletin of American Academy of Psychiatry and the Law, 23, 227–233. Lees-Haley, P.R. (1989). Litigation response syndrome: how the stress of litigation confuses the issues or personal injury: family and criminal litigation. Defense Counsel Journal, 56, 110–114. Mittenberg, W., Azrin, R., Millsaps, C., and Agilbronner, R. (1993). Identification of malingered head injury on the Wechsler Memory Scale — Revised. Psychological Assessment, 5, 34–40.

Post-TBI Depression American Psychiatric Association. (1994). Diagnostic and Statistical Manual of Mental Disorders, 4th ed. American Psychiatric Association, Washington, DC. Busch, C.R. and Alpern, H.P. (1998). Depression after mild traumatic brain injury: a review of current research. Neuropsychology Review, 8, 95–108. Putnam, S.H. and Millis, S.R. (1994). Psychosocial factors in the development and maintenance of chronic somatic and functional symptoms following mild traumatic brain injury. Advances in Medical Psychotherapy, 7, 1–22. Rosenthal, M., Christenson, B.K., and Ross, T.P. (1998). Depression following traumatic brain injury. Archives of Physical Medicine and Rehabilitation, 79, 90–103.

Estimation of Premorbid (Preinjury) Functioning Barona, A., Reynolds, C.R., and Chastani, R. (1994). A demographically based index of premorbid intelligence for the WAIS-R. Journal of Consulting in Clinical Psychology, 52, 885–887. Barry, D.T., Carpenter, G.S., Campbell, D.A., Schmitt, F.A., Helton, K., and Lipka-Molby, J.N. (1994). The New Adult Reading Test — Revised: accuracy in estimating WAIS-R IQ scores obtained 3.5 years earlier from normal older persons. Archives of Clinical Neuropsychology, 9, 239–250. Blair, J.R. and Spreen, O. (1989). Predicting premorbid IQ: a revision of the national adult reading test. The Clinical Neuropsychologist, 3, 129–136. Crawford, J. (1992). Current and premorbid intelligence measures in neuropsychological assessment, in A Handbook of Neuropsychological Assessment, Crawford, J.R., Parker, D.M., and McKinlay, W.W., Eds. Lawrence Erblaum Associates, Englewood Cliffs, NJ. Johnstone, B., Callahan, C.D., Kapila, C., and Bounan, D. (1996). The comparability of the WRAT-R reading test and NAART as estimates of premorbid intelligence in neurologically impaired patients. Archives of Clinical Neuropsychology, 11, 513–519.

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Karaken, D.A., Gur, R.C. and Saykain, A.J. (1995). Reading on the Wide Range Achievement Test — Revised and parental education as predictors of IQ: comparison with the Barona equation. Archives of Clinical Neuropsychology, 10, 147–157. Wines, A.N., Bryan, J.E., and Crossen, J.R. (1993). Estimating WAIS-R FS IQ from the National Adult Reading Test — Revised in normal subjects. The Clinical Neuropsychologist, 7, 70–84.

Diffuse Axonal Injury (DAI) Felmingham, K.L., Baguley, I.J., and Green, A.M. (2004). Effects of diffuse axonal injury on speed of information processing following severe traumatic brain injury. Neuropsychology, 18, 564–571. Fork, M., Bartels, C., Ebert, A.D., Grubrich, C., Synowitz, H., and Wallesche, C. (2004). Neuropsychological sequelae of diffuse traumatic brain injury. Brain Injury, 19, 101–108. Scheid, R., Walther, K., Guthke, T., Pruel, C., and von Cramon, Y. (2006). Cognitive sequelae of diffuse axonal injury. Neurology Archives, 63, 418–424. Wallesche, C.W., Curio, N., Galazky, I., Jost, S., and Synowitz, H. (2001). The neuropsychology of blunt head injury in the early postacute state: effects of focal lesions and diffuse axonal injury. Journal of Neurotrama, 18, 11–20. Wallesch, C.W., Curio, N., Kutz, S., Jost, S., Bartels, C., and Synowitz, H. (2001). Outcome after mild to moderate blunt head injury: effects of focal lesions and diffuse axonal injury. Brain Injury, 15, 401–412.

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Appendix C: Listing of State Courts Using Federal Rule 702 or the Daubert Standard Rule 702

Daubert Standard

Alabama Alaska Arizona Arkansas California Colorado Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico

Arkansas Connecticut Delaware District of Columbia Georgia Hawaii Idaho Indiana Iowa Kentucky Louisiana Maine Massachusetts Montana Nevada New Hampshire New Jersey New Mexico North Carolina North Dakota Ohio Oklahoma Oregon Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont 167

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Rule 702

Daubert Standard

North Carolina North Dakota Ohio Oklahoma Oregon Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

Virginia West Virginia Wisconsin Wyoming

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Index A

C

ACT scores, preinjury cognitive capacity, 61 ad hominem legal attack, legal issues, 151 Alzheimer’s disease, study of, 59 American Academy of Psychiatry and the Law, ethical principles of, 44 American Congress of Rehabilitation Medicine, Glasgow Coma Scale (GCS), 2 American Speech-Language Hearing Association, web sites, 102 anosognosia, quasi-objective approaches and, 16–17 anterograde amnesia (AA), overview of, 94 anxiety, postconcussional symptoms and, 13 aphasias, language dysfunction, 34–35 aphasic syndromes, TBI and, 101 APOE e4 genotypes, study of, 58 applied behavioral analysis (ABA), psychological rehabilitation, 107–108 articulatory loop, function of, 97 attention, cognitive rehabilitation, 96–97 Attention Process Training (APT) program, cognitive retraining, 97 Axis I and Axis II psychiatric disorders, study of, 59 Axis I diagnosis, reports and, 88

categorization cognitive rehabilitation, 99–101 common object recognition, 100 novel category learning, 100 Category Test overview of, 75 standardized assessments, 49 Centers for Disease Control, TBI and adults, 91 central nervous system, composition of, 70 cerebellum examination, overview of, 51 cerebral asymmetry, definition of, 70 cerebral atrophy (shrinkage), PET studies, 6 cerebral dysfunction, behavioral changes and, 69 Cerebrovascular disease, overview of, 29 child examination, overview of, 48 clinical laboratory assessment, overview of, 57–59 closed head injury (CHI) definition of, 6 memory and, 97 cognitive domains memory, 97–99 treatment of, 96–103 cognitive functions, assessment of, 79–81 cognitive rehabilitation attention, 96–97 categorization, 99–101 executive abilities, 102–103 language and communication disorders, 101–102 long-term memory, 98–99 models of , 95–96 therapy effectiveness, 103 cognitive retraining, matching patient’s skills, 105 Collet–Sicard syndrome, overview of, 51 Communication Modification Strategies, overview of, 106–107 Community Integration Questionnaire, functional outcome measures, 104–105 community reintegration, overview of, 103–105 compensatory rehabilitation, overview of, 96

B Barona Index, IQ levels and, 12 Base rate data, overview of, 78 basilar skull fracture, trigeminal nerve (cranial nerve V), 50 Behavioral Analysts Certification Board, web sites, 108 behavioral-cognitive techniques, premise of, 110 Benton, Arthur L., organic nature of neuropsychological variables, 67 “best evidence” rule, overview of, 127–128 brain behavior relationships, review of, 70–71 Broca, Paul, Paris Anthropological Society Meeting, 69 bruises, CT scans, 53 business records, hearsay issues, 130–131

169

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computed tomography (CT) scans focal neurological deficits, 5 x-ray technique, 52 computerized axial tomography, neurological investigation, 27 constructional apraxia, assessment of, 81 contusions, CT scans, 53 court-appointed forensic experts expert testimony, 143–144 potential benefits of, 144 courtrooms being a persuasive witness, 133–139 effective response to cross-examination, 138–139 modern courtroom diagram, 134 organizing narrative testimony, 136–137 other items to consider, 138 types of direct testimony, 135–136 visual aids and, 135 witness speaking style, 136–137 cranial nerve functioning, ophthalmologic (eye) findings, 33 cranial nerve injuries, overview of, 50–51 cranial nerve testing, overview of, 30–31

D Daubert case, neuropsychological evaluations, 71 Daubert standard, state courts and, 167–168 Daubert triliogy, U.S. Supreme Court, 120 Declarative memory, definition of, 98 Defense and Veterans Head Injury Program, study of, 59 delayed memory, overview of, 80 demographic-based indexes, preinjury IQ levels and, 12 depression post-TBI depression, 165 postconcussional symptoms and, 13 reactive depression, 38 Diagnostic and Statistical Manual of Mental Disorders Axis I diagnosis, 88 diagnostic terminology, 63 Diagnostic studies, types of, 28 diffuse axonal injury (DAI) behavioral symptoms and, 10 CT diagnostic criteria of, 10 diagnosis and, 9 neuropsychological indicators of, 10 overview of, 7–10 diffusion tensor imaging (DTI), MRI scans, 54 diffusion-weighted imaging (DWI), MRI scans, 54 direct testimony, types of, 135–136 DSM-IV Criteria amnestic disorders and, 8 cognitive disorders and, 8

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dementia due to other general medical conditions, 8 dementia due to head trauma, 8 mood disorders and, 9 personality change due to TBI, 9 DSM-IV research, postconcussional disorders, 7

E edema, head injuries and, 32 electroencephalogram (EEG) studies computed tomography (CT) scans, 5 neurological investigation, 27 electromyogram (EMG), neurological investigation, 27 emotional status/personality test, summary of, 86 environmental modification strategies metacognitive self-regulatory strategies, 108–109 overview of, 106–107 epilepsy medical history and, 29 posttraumatic epilepsy, 34 potential cause of aggressive behavior, 34 etiology, preexisting neuropsychological impairments, 88 executive abilities, cognitive rehabilitation, 102–103 executive control dysfunctions, four major areas of, 15–17 executive function, screening of, 49 expert testimony ad hominem legal attack, 151 compensation for, 144–145 court-appointed forensic experts, 143–144 degree of bias in, 144 forensic litigation and consulting cases, 151–154 initial forensic case consultation, 150–151 neuropsychologist as expert witness, 147–149 overview of, 141–142 practical issues for, 150–154 qualifications of, 149 qualities of the effective expert, 146–147 research on forensic experts, 145–146 responses to survey questions, 146 survey results, 145 visual aids, 147 experts disclosure of experts, 120–122 learned treatise rule, 131 standard format template, 122 explicit memory, definition of, 98

F facial fractures, trigeminal nerve (cranial nerve V), 50

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171

Index factitious, nonorganic neurologic problems, 33 family support, psychosocial rehabilitation, 110–111 Federal Rule 702, state courts and, 167–168 Federal Rules of Evidence (FRE), Rule 702 of, 120 Federal Rules of Evidence Code, court-appointed experts, 144 Finger Tapping Test, overview of, 75 FLAIR imaging, magnetic resonance spectroscopy (MRS), 57 fluid-attenuated inversion recovery (FLAIR), MRI scans, 54 focal neurological deficits, magnetic resonance (MR) images, 5 Forensic Neurological Assessment diagnostic testing/laboratory studies, 31–32, 38 history and, 26 laboratory studies and, 27–28 neurologic examination and, 27–32 neurologic history and, 28–30 neurorehabilitation and, 39–41 overview of, 25 physical examination and, 30–31 vs independent medical examinations, 32–36 Forensic Neuropsychiatric Assessment background information and, 72–73 boundary issues and, 44 brief history of, 69–70 clinical laboratory assessment, 57–59 criminal cases and, 87 developing testimony about damages, 45 diagnostic impressions and, 88–89 examinee effort during testing, 81–82 history of, 45–48 neurobehavioral analysis, 61–63 neurological examination and, 49–52 neuropsychiatric diagnoses, 63 neuropsychological evaluations, 71–72 observations and, 73–74 overview of, 43–44, 67–69 record review, 60–61, 60 referral questions and, 72 results, analysis, and report, 82–87 review of brain behavior relationships, 70–71 sample outline of, 84 specific cognitive functions, 79–81 standardized neurocognitive assessment, 59–60 test selections and, 74–79 forensic neuropsychological reports, language in, 68 forensic neuropsychology, differences and clinical neuropsychology, 68 frontal lobe dysfunction, quasi-objective approaches and, 16–17 frontal lobe injury, cranial nerve damage, 50

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frontal lobe lesions, patients with, 102 Frye v. United States 1923 court ruling, 71 admissibility and, 121 functional, definition of, 33 functional abnormalities demonstration of, 33 eliciting from tests, 33 functional brain imaging common uses of, 58 computed tomography, 52–53 functional magnetic resonance imaging (fMRI), 56 magnetic resonance imaging (MRI), 53–54 magnetic resonance spectroscopy (MRS), 56–57 overview of, 52–57 positron emission tomography (PET), 55–56 single-photon emission computed tomography (SPECT), 54–55 functional magnetic resonance imaging (fMRI), overview of, 56

G Galveston Orientation and Amnesia Test (GOAT) assessing PTA and, 3 emergency room and, 4 patient orientation, 94 Glasgow Coma Scale (GCS) level of consciousness, 2 neuropsychiatric examiners and, 60 predictive ability of, 48 three aspects of wakefulness, 94 table for, 3 Glasgow Outcome Score, N-acetylaspartate (NAA), 57 Goldstein, Kurt, loss of behavioral functions, 69 gradient echo imaging (GE), MRI scans, 54 Gray matter, CT scans, 53 Guides to the Evaluation of Permanent Impairment, impairment ratings, 63

H habit, rules of evidence and, 126 Halstead–Reitan Neuropsychological Test Battery, overview of, 75 handwriting, constructional ability, 49 hearsay issues business records, 130–131 notes and memos, 130 other hearsay issues, 132–133 overview of, 128–133 printed matter, 131–132 Res Gestae, 129 statements made for medical reasons, 129 hemiparesis, effects of, 52

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history overview of, 26 patient’s habits and, 29 hysteria, nonorganic neurologic problems, 33

level of consciousness, assessment of, 2 long-term memory, overview of, 98–99 Luria, A.R., organic nature of neuropsychological variables, 67

I

M

ICU monitoring, cerebral microdialysis and, 56 imaging studies, structural neurologic pathology, 32 implicit memory, definition of, 98 independent medical examination (IME) legal concerns of a case, 39 personality distubances and, 88 reports and, 37 special issues in, 36–39 International Classification of Disease closed head injury (CHI), 6 concussions and, 6 diagnostic terminology, 63 interrogatories, pretrial matters, 124 IQ estimating premorbid IQ, 80 reporting of raw scores, 85 specific cognitive functions, 79–81

magnetic resonance (MR) images computed tomography (CT) scans, 5 electroencephalogram (EEG) studies, 5 focal neurological deficits, 5 neurological investigation, 27 overview of, 53–54 positron emission tomography (PET) scans, 5 magnetic resonance spectroscopy (MRS), overview of, 56–57 malingering, nonorganic neurologic problems, 33 Mayo Portland Adaptability Inventory, functional outcome measures, 104 Medical Expert Testimony project, report on, 144 memory cognitive rehabilitation, 97–99 common object recognition, 100 evaluating memory functions, 80 long-term memory, 98–99 nondeclarative memory, 99 screening of, 49 working memory, 97–98 memory strategies, overview of, 99 mental status examination, overview of, 30 Metacognitive Self-Regulatory Strategies, selfawareness, 108–109 Meyer, Adolph, modern mental status examination, 48 migraines, medical history and, 29 mild traumatic brain injury (TBI) alteration in mental status, 5–7 complaints and symptoms in, 18 definition of, 4 diffuse axonal injury (DAI), 10 long-term neuropsychological recovery and, 18 model outline for, 157–161 special assessment considerations in, 17–19 Millon Clinical Multiaxial Inventory-III (MCMI-III), testing, 78 Mini-Mental Status Examination, overview of, 30 Minnesota Multiphasic Personality Inventory (MMPI) overview of, 14–15 reports, 124 Minnesota Neurorehabilitation Hospital, therapeutic interventions at, 40 motor examination, overview of, 31 motor functions, assessment of, 81

J Jackson, Thomas Hughlings, human potentiality/ localization debates, 70 Joiner case, legal issues, 121

K Kumho Tire, legal issues, 121

L Language and Communication Disorders, overview of, 101–102 language dysfunction, problem of, 34 language functioning, testing for, 81 Legal Issues, see also pretrial matters, courtrooms, witnesses ad hominem legal attack, 151 being a persuasive witness, 133–139 Daubert factors, 118–119 Federal Rules of Evidence (FRE), 120 forensic litigation and consulting cases, 151–154 hearsay issues, 128–133 Joiner case, 121 Kumho Tire, 121 legal test for the admissibility, 121 neuropsychological report and, 68 neuropsychological tests, 74–79 nonhearsay evidentiary issues, 125–128 pretrial matters, 122–125

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173

Index

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motor stretch reflexes, examination of, 51 multiple personality disorders, testing, 78

notes and memos, hearsay issues, 130 novel category learning, overview of, 100

N

O

N-acetylaspartate (NAA), overview of, 57 neurobehavioral analysis, overview of, 61–63 neurological examination, overview of, 49–52 neuropsychiatric diagnoses, overview of, 63 neuropsychiatric history, general elements of, 46 neuropsychiatric mental status examination common elements of, 48 overview of, 48–49 neuropsychological rehabilitation community reintegration, 103–105 five key components, 111 models of cognitive rehabilitation, 95–96 overview of, 94–95 treatment of specific cognitive domains, 96–103 vocation reintegration, 103–105 neuropsychological tests accuracy of, 74 base rate data, 78 behavior observation form, 83 confirmation of deficits and, 76 emotional/personality assessment, 78 examinee effort and, 81–82 executive function and, 87 Halstead–Reitan Neuropsychological Test Battery, 75 legal questions, 76 multiple deficits and, 76 multiple personality disorders, 78 patient’s effort and symptom validity, 78 reporting of raw scores, 85 results, analysis, and report, 82–87 standardized approach and, 77 time considerations, 76 use of multiple tests, 77 neuropsychologist as expert witness, 143–149 qualifications of, 149 neurorehabilitation holistic approach and, 40 indications for, 39–41 nondeclarative memory, different types of, 99 nonhearsay evidentiary issues “best evidence” rule, 127–128 habit and, 126 introducing physical evidence, 127 overview of, 125–128 samples and handling of, 126–127 tests and experiments, 126 nonorganic neurologic problems, overview of, 33 North American Adult Reading Test (NAART), premorbid intelligence and, 11

odors anise oil (licorice), 50 environmental odors, 50 ophthalmologic (eye) findings, cranial nerve functioning, 33 organicity, definition of, 69

P pharmacologic interventions biochemical imbalances and, 40 chart records and, 38 plaintiff lawyers, initial mental status examination, 48 positron emission tomography (PET) cerebral atrophy (shrinkage), 6 electroencephalogram (EEG) studies, 5 overview of, 55–56 postconcussional syndrome, definition of, 6 posttraumatic amnesia (PTA), overview of, 3–5, 94 premorbid functioning, four methods of, 11–12 premorbid intelligence, functioning and, 10–12 pretrial matters disclosure of experts, 120–122 interrogatories, 124 physical and mental exams, 125 preparing the attorney, 125 pretrial conferences, 125 production of documents, 124 requests for admission, 125 printed matter, hearsay issues, 131–132 production of documents, pretrial matters, 124 Proton MRS, overview of, 57 pseudodementia, examinee effort, 82 psychiatric diagnoses, brain injury and, 35 psychogenic, definition of, 33 psychological rehabilitation applied behavioral analysis (ABA), 107–108 environmental modification strategies, 106–107 five key components, 111 management of outcomes, 109–110 psychological support, overview of, 105–106 psychosocial rehabilitation, family support, 110–111 psychosocial support, overview of, 105–106

Q Qigong, integrative multidisciplinary therapies, 40

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R Rancho Los Amigos (RLA) scale levels of, 95 overview of, 117–118 TBI testing, 95 reading test scores, premorbid functioning and, 11 records, important records to review, 60–61 referral questions, overview of, 72 rehabilitation continuum of care and, 93–94 models of cognitive rehabilitation, 95–96 outpatient rehabilitation, 93 overview of, 91–92 Reitan, Ralph M. Halstead–Reitan Neuropsychological Test Battery, 75 organic nature of neuropsychological variables, 67 Res Gestae, definition of, 129 research literature definitions and criteria for TBI, 163 diffuse axonal injury (DAI), 166 estimation of premorbid (preinjury) functioning, 165 forensic assessment of malingering, 165 neuropsychological base rates and, 164 neuropsychological impairment and neuroimaging studies, 163 neuropsychological recovery and outcome post-TBI, 164 post-TBI depression, 165 TBI and MMPI-2, 164 restorative rehabilitation, overview of, 96 retrograde amnesia (RA), overview of, 94

S safety, community reintegration, 104 SAT scores, preinjury cognitive capacity, 61 screening questions attention and, 46 executive functions, 47 memory and, 47 personality changes and, 47 Seashore Rhythm Test, overview of, 75 self-awareness, metacognitive self-regulatory strategies, 108–109 semantic memory common object recognition, 100 definition of, 98 sensory examination, overview of, 31 single photon emission computerized tomography (SPECT) neurological investigation, 27 overview of, 54–55

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Speech Sound Perception Test, overview of, 75 spinal cord, overview of, 70 standardized neurocognitive assessment, overview of, 59–60 statistics APOE e4 genotypes, 58 incidence of brain injury in the U.S., 1 long-term neuropsychological recovery, 18 low uptake of flumazenil binding, 56 main diagnoses relevant to TBI, 63 N-acetylaspartate (NAA), 57 neuropsychological tests, 74 social and economic ramifications of TBI, 92 structural brain imaging common uses of, 55 computed tomography, 52–53 functional magnetic resonance imaging (fMRI), 56 magnetic resonance imaging (MRI), 53–54 magnetic resonance spectroscopy (MRS), 56–57 overview of, 52–57 positron emission tomography (PET), 55–56 single-photon emission computed tomography (SPECT), 54–55 subdural hematoma, CT scans, 53 syndrome of inappropriate antidiuretic hormone secretion (SIADH), Proton MRS, 57

T Tactual Performance Test (TPT), overview of, 75 TBI alteration in mental status, 5–7 definitions and criteria for, 1–2 diffuse axonal injury (DAI), 7–10 e4 form of the apolipoprotein E gene (APOE e4), 58 estimation of premorbid intelligence and functioning, 10–12 executive control dysfunctions and, 15–17 level of consciousness, 2 main diagnoses relevant to, 63 personality changes and, 12–15 postinjury emotional functioning and, 12–15 posttraumatic amnesia (PTA), 3–5 predicting prognosis of recovery, 2 social and economic ramifications, 92 test selections, overview of, 74–79 testing of coordination, overview of, 31 Trailmaking Test, poor eyesight and, 76

U U.S. Supreme Court Daubert triliogy, 120 Winans v. New York & Eric R. R., 142

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175

Index

V visual aids courtrooms and, 135 expert testimony, 147 visuospatial sketchpad, working memory and, 97 vocabulary test scores, premorbid functioning and, 11 vocational reintegration as gradual process, 105 outcomes research, 105 overview of, 103–105

W WAIS-III, performance and verbal IQ on, 19 wakefulness, three aspects of, 94 web sites American Speech-Language Hearing Association, 102 Behavioral Analysts Certification Board, 108 Wechsler Adult Intelligence Scales base rate data, 78 preinjury IQ levels, 12 testing and, 75 Wechsler Test of Adult Reading, intelligence testing, 80 Wernicke, Carl, brain study and, 69 Wernicke–Korsakoff syndrome, overview of, 29

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Wide Range Achievement Test, premorbid intelligence and, 11 Wide Range Achievement Test–III, reading levels, 80 Winans v. New York & Eric R. R., expert testimony, 142 Wisconsin Card Sorting Test base rate data, 78 lateral-frontal injury and, 62 poor eyesight and, 76 standardized assessments, 49 witnesses being a persuasive witness, 133–139 effective response to cross-examination, 138–139 organizing narrative testimony, 136–137 other items to consider, 138 speaking style, 136–137 types of direct testimony, 135–136 working memory, overview of, 97–98

X x-ray technique, computed tomography, 52

Y yoga, integrative multidisciplinary therapies, 40

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