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Autopsy on Fake Bad Scale

Posted on October 20, 2009 by Tim Titolo

Some of you requested this repost...

My good friend and colleague, Dorothy Sims, from Ocala Florida, wrote this article on the Fake Bad Scale. Dorothy devotes her practice to analyzing and exposing prejudices in doctors hired by insurance companies and defense firms. She has written an entire book on the topic entitled "Exposing Deceptive Defensive Doctors."

Dorothy and I have worked on a number of cases together and I personally attest of her specialty. Our first foray was to depose the doctor who created the Fake Bad scale, Dr. Paul Lees-Haley.

The Minnesota Multiphasic Personality Inventory-2, is the most commonly administered psychological test in the world.¹ In 2006, the publishers of the MMPI-2 adopted “Fake Bad Scale.” The scale consists of 43 statements to which the patient responds “True” or “False.” Unfortunately, many of those same statements are statements one would expect a person with brain damage to endorse. Traumatic brain damage can cause attention and concentration difficulties, confusion, anxiety and depression.² Persons with cognitive dysfunction and related emotional issues such as anxiety, depression and/or physical problems due to a brain injury may endorse items on the scale such as anxiety symptoms, depressive symptoms, head pain and/or confusion. The patient incurs points on the Fake Bad Scale by admitting to the very symptoms of brain injury.³ In fact, if one removes the items in the scale which are symptoms of brain impairment, the patient may very well pass, thus making elevations on the Fake Bad Scale potentially an indication of true brain impairment versus symptom amplification or ,in worst case scenarios, malingering.

The distributor sells an in-depth computer analysis of the results called The Minnesota Report in which there is no discussion of the Fake Bad Scale, unlike the other traditional validity scales. The absence of FBS discussion is due to the fact that Dr. James Butcher, the creator of the report, did not include the FBS in his interpretive report since he believes it is not reliable.⁴ Additionally, there are no alternative explanations for internally consistent, very high elevations on the FBS as exist in other traditional validity scales contained within the MMPI-2 manual. For example, an extreme elevation in the F scale (t > 110) is not limited to “exaggeration,” but can also include, confusion, random responding and severe psychopathology.⁵ The Fake Bad Scale pulls physical and psychiatric symptoms that legitimate patients with brain injury could endorse. This test was first called the Fake Bad Scale, then referred to as the FBS, and is now referred to as the SVS according to the publisher.⁶ Since the scale is so widely recognized by its original moniker, it will continue to be referred to as such in this article. The original scale, Fake Bad Scale, suggests that elevated scores indicate that the patient is lying. This tremendous potential for harm cannot be undone once the mere name of the test is uttered. Even the acronym FBS, then SVS, presents little solution, as an inquisitive juror could Google the initials and clearly be swayed by the underlying name.

Use of FBS in Cognitive Malingering

The use of the Fake Bad Scale to support cognitive malingering may violate the National Academy of Neuropsychology published methods for assessing symptom validity which states “Invalid performance on a measure of personality” (such as the MMPI in this case) “cannot be used, a priori, to determine malingering of cognitive tests.”⁷ The FBS is not an effort test and should not be used as one.

The Adoption of the Scale

On 1/23/06, the publisher chose eight psychologists to send a request by e-mail asking for their reviews on the FBS and only gave the reviewers several weeks to respond.⁸ The researchers were sent only two articles, both in favor of the scale. In so doing, the publisher failed to send the article with the largest sample size that was critical of the scale.⁹ The actual recommendations by the eight reviewers failed to reveal consensus as to how to score the FBS . Should the FBS be used to diagnose malingered PTSD? Cognitive feigning? Faking physical symptoms? All of the above? Some of the above?¹⁰ The distributor’s website cautions doctors to consider the FBS which may be elevated due to legitimate physical conditions, but does not say how to do this. Remove points? Don’t give the test? Give it little or no weight? The actual scoring method is also a problem. There are so many suggested scores above which one might conclude exaggeration, (20, 22, 23, 24, 26, 28, 29, and 30)¹¹so as to make use of the FBS, relative to its validity, questionable.

Furthermore, any scale created to be used only in forensic settings makes it inherently suspect. Imagine an MRI of the brain which is reliable only if the patient is in litigation.

The publisher’s interpretation manual for the MMPI-2 was published in 200l and makes no reference to the Fake Bad Scale. Recently, a newer manual has been published discussing the MMPI-2 RF (a shorter version of the MMPI-2 with its own set of issues) and this manual gives instructions on how to use the Fake Bad Scale. Unfortunately, it’s not the same Fake Bad Scale.¹² The scale discussed in the manual contains only 30 items, while the original Fake Bad Scale contains 43 items. What happened to the other l3 items? Why were they excluded and on what basis? Which Fake Bad Scale is more reliable, specific and/or sensitive to exaggeration… the longer version or the shorter version?

The RF manual reports, on page 23 of the MMPI-RF Technical Manual, that the internal consistency (reliability) of the Fake Bad Scale is only .50 for men and .56 for women.¹³ The sample was based upon 1,138 men and 1,138 women. Internal consistency refers to whether the items on the scale hang together, thus measuring a similar construct. If they do not, then the scale measures multiple constructs, some of which may be unknown. The lower the internal consistency of a scale, the lower its validity is. For example, if an intelligence test also measures anxiety, does the score represent intelligence, anxiety, or both? Unfortunately, the FBS scale was not a “new” scale with “new” items, but borrowed items from other scales that measure real disturbances such as cognitive dysfunction.¹⁴

In a recent newspaper article discussing issues surrounding the manner with which tests/scales were adopted, University of Minnesota officials stated they were willing to
let the marketplace decide”.¹⁵ As one might expect, the FBS scale tends to be used more by defense-oriented practitioners in personal injury lawsuits, since the scale depicts a large percentage of clients as "malingering."¹⁶ Should the marketplace decide if a scale is scientific? If a scale frequently concludes malingering and is embraced by the defense industry, does that fact make it scientific or simply profitable?

Bias Against Persons with Brain Injuries

On 5/3l/07 in a letter by Arnie Abels, Ph.D., Chair of American Psychological Association’s Committee on Disability Issues in Psychology, Dr. Abels expressed concerns that the scale had the potential to harm those with disabilities and recommended a review by Buros Mental Measurements, an independent organization.¹⁷ If the scale is valid then why is there reluctance to have an independent evaluation? The authors are unaware of such an independent review ever taking place.

The Courts

Back in January, 2002, Doctors Butcher and Arbisi and others found “the FBS is not likely to meet legal criteria in forensic cases because of the lack of empirical validity …”¹⁸ (emphasis supplied). Their prediction rang true. If a patient or examinee admits to legitimate symptoms secondary to brain injury on the FBS, points are accumulated which can result in a score that supports the contention of malingering. Five different judges had hearings on the FBS and ultimately rejected the scale.¹⁹ Last year a judge found, “the FBS has significant potential to negatively impact persons with true disabilities.”²⁰

Critique of Butcher et al. by Ben-Porath, Greve, Bianchini and Kaufmann

In an article responding to Dr. Butcher’s concerns about the FBS, the above-referenced authors support the use of the FBS. The critique finds, “When the FBS is elevated at levels described in this paper, our best science indicates that the examinee was likely over endorsing symptoms, a fact that plaintiff attorneys misconstrue as the expert calling the plaintiff a fake, a fraud, or a liar”²¹(emphasis supplied). According to the American Psychiatric Association, malingering “is suspected if any combination of the following are observed

Medicolegal context of presentation
Marked discrepancy between the person’s claimed stress of disability and the objective findings
Lack of cooperation during the diagnostic evaluation and in complying with prescribed treatment regimen
The presence of Antisocial Personality Disorder "²²

The author of the scale itself discusses the FBS in the context of malingering which also includes “intentional production of false or exaggerated symptoms."²³ Intentional misrepresentation is dishonest and does suggest lying. This can result in a plaintiff with a legitimate brain injury being prosecuted for perjury and/or insurance fraud. Claims of “malingering” are not to be taken lightly and claiming a scale, originally called the “Fake Bad Scale”, has nothing to do with dishonesty or faking is inconsistent with logic.

The first article authored by Dr. Lees-Haley discusses the scale’s use in differentiating malingerers.²⁴ The publisher’s website discusses credibility of symptoms and lists references discussing “malingering”.²⁵ In an outline presented to ABA members, co-author of this critique, Dr. Kaufmann, states “So when the plaintiff’s attorney asks, ‘Are you calling my client a fake, fraud, and a liar?’, one effective response is, ‘No, FBS is just one indicator of symptom invalidity associated with the exaggerated reporting of symptoms’. Upon hearing such testimony, a reasonably prudent juror would likely conclude the plaintiff was faking”²⁶(emphasis supplied). Accusing the plaintiff’s attorney of misconstruing the scale by perceiving its use as an attack on the plaintiff’s credibility is confusing at best. The original name of the scale was the FAKE BAD SCALE. Does that not imply dishonesty or faking? How does one determine the boundaries between exaggeration and faking? To claim that a scale does not mean “faking”, but then assume a reasonably prudent juror, after hearing reference to the scale, would conclude the plaintiff was faking, is an exercise in cognitive dissonance.
The article is also critical of Dr. Butcher for discussing the harmful effects of a cut score of 20 “that has long ago been identified by the developer of the scale as too low.”²⁷ However, the critique also referenced a book authored by Dr. Larrabee which recommended “an FBS cutting score above 20 or 2l provided optimal classification of the malingering and head injury groups…”²⁸

The critique also states that “numerous board certified clinical neuropsychologist experts report admissions of FBS testimony into evidence, with some testifying that they have never had FBS excluded” and then cites Upchurch v. Broward Co School Board 2008 and Solomon v. TK Power. ²⁹

A letter from Upchurch’s attorney revealed that the case was not a l5th circuit case as represented, nor was the testimony admitted and considered by the court”.³⁰ After discovery depositions on the FBS, the defense agreed to provide the benefits sought, pay costs and attorney fees, and further agreed not to send the claimant to the doctor who claimed malingering based on the FBS.³¹ The critique then cites Solomon v. TK Power and indicates that objections were withdrawn after evidence and oral arguments were presented.³² The plaintiff’s attorney did, in fact, withdraw her Frye motion because she believed that the jury would be outraged should the defense continue to rely upon the FBS.³³ After the defense expert testified, the defendants offered additional sums to settle the case… and it was.³⁴ These cases are hardly an endorsement of the FBS.

In the response criticizing Butcher, et al for discussing the contents of the actual reviews of the FBS conducted at the request of publisher, the authors say they do not wish to reinforce conduct, i.e. discuss review process of the FBS and these issues are not addressed in the response. Why? The University of Minnesota is a publicly funded institution and the review process should be open to the public.

Perhaps the best argument reflecting the weaknesses of this scale can be found in the Critique in which it is stated, “As research has progressed, the FBS score range considered to be consistent with malingering has risen.”³⁵ Does that mean the people in the “malingered” range 5 years ago were incorrectly identified? If so, what is being done to correct the incorrect accusation? Considering that the cut scores have continued to go up over time, the problem for scientific reliability only increases with time. The newly increased scores are similar to DNA testing in criminal cases, which essentially exonerate the defendant. The only difference being there appears to be no attempt to contact those individuals to whom the wrong cut score was applied, which resulted in a loss of benefits, in order to make them whole. Now that the cut score is higher, what efforts have been made to reimburse those persons wrongfully denied benefits by use of lower cut scale?

Conclusion

This scale is too controversial and has too many psychometric problems to be valid. The scale has the potential to consistently measure a construct, (real problems, unknown issues) which is not consistent with its original name, “faking bad.” It consistently measures something other than its original name implied. The scale is biased against those with legitimate brain impairment; thus, those least able to defend themselves against such charges of dishonesty are the ones most likely to be victimized by it. The scale gives points for malingering for endorsing legitimate symptoms of TBI and as such, it should not be considered valid.

Dorothy Sims is a plaintiff attorney in Florida.
Richard Perrillo, Ph.D., is a neuropsychologist practicing in Beverly Hills, and San Francisco, California.
Richard B. Berman is a plaintiff attorney in Florida.

References

Pope, K, Butcher J, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, Third edition, 2006APA, at 7
8/24/09, http://www.ninds.nih.gov/disorders/tbi/detail_tbi.htm
Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”, Butcher, JN, Graham, JR, Williams, CL, Ben-Porath, YS, Development and Use of the MMPI2 Content Scales, Regents of University of Minnesota Press, 1993, Attachment A (MMPI2 items)
Affidavit 4/27/07, Dr. James Neal Butcher Upchurch v. Broward County
Pope, KS, Butcher, JN, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, APA, l997, at l03.
8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97...
SS Bush, et. Al. ,Symptom Validity Assessment: practice Issues and Medical Necessity, NAN Policy and Planning Committee, Archives of Clinical Neuropsychology, 20 (2005) 4l90426 , 424
Email dated l/23/06 from U. Minn. Press, Beverly Kaemmer asking reviewers to have responses back by 2/7/07, only 2 weeks after the request for review is sent.
Id.
Butcher, JN, Gass, CS Cumella, E, Kelly, Z, Williams, C.L. Potential for Bias in MMPI2 Assessments Using the Fake Bad Scale, Psychol. Inj. and Law, V1, # 3, 191-209, 2008,. Paul Lees-Haley et al., Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 68, 203-2l0 , 199l.
Id.
MMPI2rf, Manual for Administration, Scoring and Interpretation, University of Minnesota Press, 2008, at 29.
MMPI-RF, MMPI2 Restructured Form Technical Manual, p.23 University of Minnesota Press, 2008.
Id.
Minneapolis Star Tribute, 8/2/02, Feud Over Famed Test Erupts at U.
http://www1.umn.edu/mmpi/mnreport.php
Letter from Dr. Arnie Ables, Phd, Chair, APA Committee on Disability and the Law dated 5/3l/07 with follow up letter dated 8/9/07 to publisher of MMPI2 “These factors led CDIP to suggest an independent evaluation of the FBS by Buros Institute of Mental measurement…” page 2 of 8/9/07 letter
Butcher, JN, Arbisi, P, Atlis, M, McNulty, J, The Construct Validity of the Lees-Haley Fake Bad Scale. Does this scale measure somatic malingering and feigned emotional distress?” Archives of Clinical Neuropsychology l9 (2003) 473-485, at 484
Vandergracht v. Progressive Express, USAA insurance company and TIG insurance Company Case 02 04552, Florida, Williams v CSX Transportation, Case No 04-CA-008892, Stith v. Williams and State Farm Insurer, Case No 2003 0l0945 AG, Limbaugh-Kirker v Dicosta, Case No Ca 000706, 2/l0/09, Transcript Ft. Meyers, Florida, Anderson v E & S International Enterprises, Inc, Case No RG05 2ll076, Alameda County,7/29/08.
Stith v. Williams & State Farm Insurance , case number 2003, CA 0l0945AG, 8/28/08
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at 80
9/l6/09 http://en.wikipedia.org/wiki/Malingering
8/22/09 http://emedicine.medscape.com/article/293206-overview, Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
8/20/09 8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97DA/0/mmpi2FBS.pdf, 5/9/09, http://www.pearsonassessments.com/news/pr011107.htm
Dr, Kaufmann outline to American Bar Association undated entitled “Evidence of Law and SVT Science” presented on 3/l2/09 in New Orleans at ABA sponsored conference at page 5.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at 81
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, 2009 vol 2, #l, 62-85 at 79
Letter from Richard B. Berman, Esq. dated l/6/09 and order dated 3/319/09 by Judge Katheryn Pecko, Judge of Compensation Claims in Upchurch V. School Board of Broward County/Optacom approving the joint stipulation between the parties wherein the fees and costs were paid by the carrier, the defense agreed to provide medical and psychiatric care and agreed the claimant did not have to return to the defense medical examiner who testified about the Fake Bad Scale.
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, vol 2, #l, 62-85 , Springer Science
Letter from Dianne Weaver dated l/6/09 to publisher of journal Psych Injury and the Law.
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, vol 2, #l, 62-85 , Springer Science.

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Tags: Publications, lees-haley, sims

An Autopsy on the Fake Bad Scale: The Political and Scientific Ramifications of the Methodology and Application of the Fake Bad Scale Against Persons with Brain Impairment

Posted on October 8, 2009 by Tim Titolo

My good friend and colleague, Dorothy Sims, from Ocala Florida, wrote this article on the Fake Bad Scale. Dorothy devotes her practice to analyzing and exposing prejudices in doctors hired by insurance companies and defense firms. She has written an entire book on the topic entitled "Exposing Deceptive Defensive Doctors."

Dorothy and I have worked on a number of cases together and I personally attest of her specialty. Our first foray was to depose the doctor who created the Fake Bad scale, Dr. Paul Lees-Haley.

The Minnesota Multiphasic Personality Inventory-2, is the most commonly administered psychological test in the world.¹ In 2006, the publishers of the MMPI-2 adopted “Fake Bad Scale.” The scale consists of 43 statements to which the patient responds “True” or “False.” Unfortunately, many of those same statements are statements one would expect a person with brain damage to endorse. Traumatic brain damage can cause attention and concentration difficulties, confusion, anxiety and depression.² Persons with cognitive dysfunction and related emotional issues such as anxiety, depression and/or physical problems due to a brain injury may endorse items on the scale such as anxiety symptoms, depressive symptoms, head pain and/or confusion. The patient incurs points on the Fake Bad Scale by admitting to the very symptoms of brain injury.³ In fact, if one removes the items in the scale which are symptoms of brain impairment, the patient may very well pass, thus making elevations on the Fake Bad Scale potentially an indication of true brain impairment versus symptom amplification or ,in worst case scenarios, malingering.

The distributor sells an in-depth computer analysis of the results called The Minnesota Report in which there is no discussion of the Fake Bad Scale, unlike the other traditional validity scales. The absence of FBS discussion is due to the fact that Dr. James Butcher, the creator of the report, did not include the FBS in his interpretive report since he believes it is not reliable.⁴ Additionally, there are no alternative explanations for internally consistent, very high elevations on the FBS as exist in other traditional validity scales contained within the MMPI-2 manual. For example, an extreme elevation in the F scale (t > 110) is not limited to “exaggeration,” but can also include, confusion, random responding and severe psychopathology.⁵ The Fake Bad Scale pulls physical and psychiatric symptoms that legitimate patients with brain injury could endorse. This test was first called the Fake Bad Scale, then referred to as the FBS, and is now referred to as the SVS according to the publisher.⁶ Since the scale is so widely recognized by its original moniker, it will continue to be referred to as such in this article. The original scale, Fake Bad Scale, suggests that elevated scores indicate that the patient is lying. This tremendous potential for harm cannot be undone once the mere name of the test is uttered. Even the acronym FBS, then SVS, presents little solution, as an inquisitive juror could Google the initials and clearly be swayed by the underlying name.

Use of FBS in Cognitive Malingering

The use of the Fake Bad Scale to support cognitive malingering may violate the National Academy of Neuropsychology published methods for assessing symptom validity which states “Invalid performance on a measure of personality” (such as the MMPI in this case) “cannot be used, a priori, to determine malingering of cognitive tests.”⁷ The FBS is not an effort test and should not be used as one.

The Adoption of the Scale

On 1/23/06, the publisher chose eight psychologists to send a request by e-mail asking for their reviews on the FBS and only gave the reviewers several weeks to respond.⁸ The researchers were sent only two articles, both in favor of the scale. In so doing, the publisher failed to send the article with the largest sample size that was critical of the scale.⁹ The actual recommendations by the eight reviewers failed to reveal consensus as to how to score the FBS . Should the FBS be used to diagnose malingered PTSD? Cognitive feigning? Faking physical symptoms? All of the above? Some of the above?¹⁰ The distributor’s website cautions doctors to consider the FBS which may be elevated due to legitimate physical conditions, but does not say how to do this. Remove points? Don’t give the test? Give it little or no weight? The actual scoring method is also a problem. There are so many suggested scores above which one might conclude exaggeration, (20, 22, 23, 24, 26, 28, 29, and 30)¹¹so as to make use of the FBS, relative to its validity, questionable.

Furthermore, any scale created to be used only in forensic settings makes it inherently suspect. Imagine an MRI of the brain which is reliable only if the patient is in litigation.

The publisher’s interpretation manual for the MMPI-2 was published in 200l and makes no reference to the Fake Bad Scale. Recently, a newer manual has been published discussing the MMPI-2 RF (a shorter version of the MMPI-2 with its own set of issues) and this manual gives instructions on how to use the Fake Bad Scale. Unfortunately, it’s not the same Fake Bad Scale.¹² The scale discussed in the manual contains only 30 items, while the original Fake Bad Scale contains 43 items. What happened to the other l3 items? Why were they excluded and on what basis? Which Fake Bad Scale is more reliable, specific and/or sensitive to exaggeration… the longer version or the shorter version?

The RF manual reports, on page 23 of the MMPI-RF Technical Manual, that the internal consistency (reliability) of the Fake Bad Scale is only .50 for men and .56 for women.¹³ The sample was based upon 1,138 men and 1,138 women. Internal consistency refers to whether the items on the scale hang together, thus measuring a similar construct. If they do not, then the scale measures multiple constructs, some of which may be unknown. The lower the internal consistency of a scale, the lower its validity is. For example, if an intelligence test also measures anxiety, does the score represent intelligence, anxiety, or both? Unfortunately, the FBS scale was not a “new” scale with “new” items, but borrowed items from other scales that measure real disturbances such as cognitive dysfunction.¹⁴

In a recent newspaper article discussing issues surrounding the manner with which tests/scales were adopted, University of Minnesota officials stated they were willing to
let the marketplace decide”.¹⁵ As one might expect, the FBS scale tends to be used more by defense-oriented practitioners in personal injury lawsuits, since the scale depicts a large percentage of clients as "malingering."¹⁶ Should the marketplace decide if a scale is scientific? If a scale frequently concludes malingering and is embraced by the defense industry, does that fact make it scientific or simply profitable?

Bias Against Persons with Brain Injuries

On 5/3l/07 in a letter by Arnie Abels, Ph.D., Chair of American Psychological Association’s Committee on Disability Issues in Psychology, Dr. Abels expressed concerns that the scale had the potential to harm those with disabilities and recommended a review by Buros Mental Measurements, an independent organization.¹⁷ If the scale is valid then why is there reluctance to have an independent evaluation? The authors are unaware of such an independent review ever taking place.

The Courts

Back in January, 2002, Doctors Butcher and Arbisi and others found “the FBS is not likely to meet legal criteria in forensic cases because of the lack of empirical validity …”¹⁸ (emphasis supplied). Their prediction rang true. If a patient or examinee admits to legitimate symptoms secondary to brain injury on the FBS, points are accumulated which can result in a score that supports the contention of malingering. Five different judges had hearings on the FBS and ultimately rejected the scale.¹⁹ Last year a judge found, “the FBS has significant potential to negatively impact persons with true disabilities.”²⁰

Critique of Butcher et al. by Ben-Porath, Greve, Bianchini and Kaufmann

In an article responding to Dr. Butcher’s concerns about the FBS, the above-referenced authors support the use of the FBS. The critique finds, “When the FBS is elevated at levels described in this paper, our best science indicates that the examinee was likely over endorsing symptoms, a fact that plaintiff attorneys misconstrue as the expert calling the plaintiff a fake, a fraud, or a liar”²¹(emphasis supplied). According to the American Psychiatric Association, malingering “is suspected if any combination of the following are observed

Medicolegal context of presentation
Marked discrepancy between the person’s claimed stress of disability and the objective findings
Lack of cooperation during the diagnostic evaluation and in complying with prescribed treatment regimen
The presence of Antisocial Personality Disorder "²²

The author of the scale itself discusses the FBS in the context of malingering which also includes “intentional production of false or exaggerated symptoms."²³ Intentional misrepresentation is dishonest and does suggest lying. This can result in a plaintiff with a legitimate brain injury being prosecuted for perjury and/or insurance fraud. Claims of “malingering” are not to be taken lightly and claiming a scale, originally called the “Fake Bad Scale”, has nothing to do with dishonesty or faking is inconsistent with logic.

The first article authored by Dr. Lees-Haley discusses the scale’s use in differentiating malingerers.²⁴ The publisher’s website discusses credibility of symptoms and lists references discussing “malingering”.²⁵ In an outline presented to ABA members, co-author of this critique, Dr. Kaufmann, states “So when the plaintiff’s attorney asks, ‘Are you calling my client a fake, fraud, and a liar?’, one effective response is, ‘No, FBS is just one indicator of symptom invalidity associated with the exaggerated reporting of symptoms’. Upon hearing such testimony, a reasonably prudent juror would likely conclude the plaintiff was faking”²⁶(emphasis supplied). Accusing the plaintiff’s attorney of misconstruing the scale by perceiving its use as an attack on the plaintiff’s credibility is confusing at best. The original name of the scale was the FAKE BAD SCALE. Does that not imply dishonesty or faking? How does one determine the boundaries between exaggeration and faking? To claim that a scale does not mean “faking”, but then assume a reasonably prudent juror, after hearing reference to the scale, would conclude the plaintiff was faking, is an exercise in cognitive dissonance.
The article is also critical of Dr. Butcher for discussing the harmful effects of a cut score of 20 “that has long ago been identified by the developer of the scale as too low.”²⁷ However, the critique also referenced a book authored by Dr. Larrabee which recommended “an FBS cutting score above 20 or 2l provided optimal classification of the malingering and head injury groups…”²⁸

The critique also states that “numerous board certified clinical neuropsychologist experts report admissions of FBS testimony into evidence, with some testifying that they have never had FBS excluded” and then cites Upchurch v. Broward Co School Board 2008 and Solomon v. TK Power. ²⁹

A letter from Upchurch’s attorney revealed that the case was not a l5th circuit case as represented, nor was the testimony admitted and considered by the court”.³⁰ After discovery depositions on the FBS, the defense agreed to provide the benefits sought, pay costs and attorney fees, and further agreed not to send the claimant to the doctor who claimed malingering based on the FBS.³¹ The critique then cites Solomon v. TK Power and indicates that objections were withdrawn after evidence and oral arguments were presented.³² The plaintiff’s attorney did, in fact, withdraw her Frye motion because she believed that the jury would be outraged should the defense continue to rely upon the FBS.³³ After the defense expert testified, the defendants offered additional sums to settle the case… and it was.³⁴ These cases are hardly an endorsement of the FBS.

In the response criticizing Butcher, et al for discussing the contents of the actual reviews of the FBS conducted at the request of publisher, the authors say they do not wish to reinforce conduct, i.e. discuss review process of the FBS and these issues are not addressed in the response. Why? The University of Minnesota is a publicly funded institution and the review process should be open to the public.

Perhaps the best argument reflecting the weaknesses of this scale can be found in the Critique in which it is stated, “As research has progressed, the FBS score range considered to be consistent with malingering has risen.”³⁵ Does that mean the people in the “malingered” range 5 years ago were incorrectly identified? If so, what is being done to correct the incorrect accusation? Considering that the cut scores have continued to go up over time, the problem for scientific reliability only increases with time. The newly increased scores are similar to DNA testing in criminal cases, which essentially exonerate the defendant. The only difference being there appears to be no attempt to contact those individuals to whom the wrong cut score was applied, which resulted in a loss of benefits, in order to make them whole. Now that the cut score is higher, what efforts have been made to reimburse those persons wrongfully denied benefits by use of lower cut scale?

Conclusion

This scale is too controversial and has too many psychometric problems to be valid. The scale has the potential to consistently measure a construct, (real problems, unknown issues) which is not consistent with its original name, “faking bad.” It consistently measures something other than its original name implied. The scale is biased against those with legitimate brain impairment; thus, those least able to defend themselves against such charges of dishonesty are the ones most likely to be victimized by it. The scale gives points for malingering for endorsing legitimate symptoms of TBI and as such, it should not be considered valid.

Dorothy Sims is a plaintiff attorney in Florida.
Richard Perrillo, Ph.D., is a neuropsychologist practicing in Beverly Hills, and San Francisco, California.
Richard B. Berman is a plaintiff attorney in Florida.

References

Pope, K, Butcher J, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, Third edition, 2006APA, at 7
8/24/09, http://www.ninds.nih.gov/disorders/tbi/detail_tbi.htm
Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”, Butcher, JN, Graham, JR, Williams, CL, Ben-Porath, YS, Development and Use of the MMPI2 Content Scales, Regents of University of Minnesota Press, 1993, Attachment A (MMPI2 items)
Affidavit 4/27/07, Dr. James Neal Butcher Upchurch v. Broward County
Pope, KS, Butcher, JN, Seelen, J, The MMPI, MMPI2 and MMPIA in Court, APA, l997, at l03.
8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97...
SS Bush, et. Al. ,Symptom Validity Assessment: practice Issues and Medical Necessity, NAN Policy and Planning Committee, Archives of Clinical Neuropsychology, 20 (2005) 4l90426 , 424
Email dated l/23/06 from U. Minn. Press, Beverly Kaemmer asking reviewers to have responses back by 2/7/07, only 2 weeks after the request for review is sent.
Id.
Butcher, JN, Gass, CS Cumella, E, Kelly, Z, Williams, C.L. Potential for Bias in MMPI2 Assessments Using the Fake Bad Scale, Psychol. Inj. and Law, V1, # 3, 191-209, 2008,. Paul Lees-Haley et al., Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 68, 203-2l0 , 199l.
Id.
MMPI2rf, Manual for Administration, Scoring and Interpretation, University of Minnesota Press, 2008, at 29.
MMPI-RF, MMPI2 Restructured Form Technical Manual, p.23 University of Minnesota Press, 2008.
Id.
Minneapolis Star Tribute, 8/2/02, Feud Over Famed Test Erupts at U.
http://www1.umn.edu/mmpi/mnreport.php
Letter from Dr. Arnie Ables, Phd, Chair, APA Committee on Disability and the Law dated 5/3l/07 with follow up letter dated 8/9/07 to publisher of MMPI2 “These factors led CDIP to suggest an independent evaluation of the FBS by Buros Institute of Mental measurement…” page 2 of 8/9/07 letter
Butcher, JN, Arbisi, P, Atlis, M, McNulty, J, The Construct Validity of the Lees-Haley Fake Bad Scale. Does this scale measure somatic malingering and feigned emotional distress?” Archives of Clinical Neuropsychology l9 (2003) 473-485, at 484
Vandergracht v. Progressive Express, USAA insurance company and TIG insurance Company Case 02 04552, Florida, Williams v CSX Transportation, Case No 04-CA-008892, Stith v. Williams and State Farm Insurer, Case No 2003 0l0945 AG, Limbaugh-Kirker v Dicosta, Case No Ca 000706, 2/l0/09, Transcript Ft. Meyers, Florida, Anderson v E & S International Enterprises, Inc, Case No RG05 2ll076, Alameda County,7/29/08.
Stith v. Williams & State Farm Insurance , case number 2003, CA 0l0945AG, 8/28/08
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at 80
9/l6/09 http://en.wikipedia.org/wiki/Malingering
8/22/09 http://emedicine.medscape.com/article/293206-overview, Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
Paul Lees-Haley et. al, Fake Bad Scale on the MMPI 2 for Personal Injury Claimants, Psychological Report, 1991 68, 203-210 wherein on the first page in the summary the authors refer to the scale “for the detection of malingerers in personal injury claims”
8/20/09 8/l9/09, http://pearsonassess.com/NR/rdonlyres/A25DB8F8-435F-4066-801B-B641978A97DA/0/mmpi2FBS.pdf, 5/9/09, http://www.pearsonassessments.com/news/pr011107.htm
Dr, Kaufmann outline to American Bar Association undated entitled “Evidence of Law and SVT Science” presented on 3/l2/09 in New Orleans at ABA sponsored conference at page 5.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, 2009 vol 2, #l, 62-85 at 81
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, 2009 vol 2, #l, 62-85 at 79
Letter from Richard B. Berman, Esq. dated l/6/09 and order dated 3/319/09 by Judge Katheryn Pecko, Judge of Compensation Claims in Upchurch V. School Board of Broward County/Optacom approving the joint stipulation between the parties wherein the fees and costs were paid by the carrier, the defense agreed to provide medical and psychiatric care and agreed the claimant did not have to return to the defense medical examiner who testified about the Fake Bad Scale.
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj andLlaw, vol 2, #l, 62-85 , Springer Science
Letter from Dianne Weaver dated l/6/09 to publisher of journal Psych Injury and the Law.
Id.
Ben-Porath, Y.S, Greve, KW, Bianchini, KJ, Kaufmann, P.M,, The MMPI-2 Symptom Validity Scale (FBS) Is an Empirically Validated Measure of Overreporting in Personal Injury Litigants and Claimants: Reply to Butcher et a. (2008) Psychol. Inj and Law, vol 2, #l, 62-85 , Springer Science.

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Tags: Publications, lees-haley, sims

Mild Traumatic Brain Injury

Posted on August 1, 2009 by Tim Titolo

This article on Mild Traumatic Brain Injury was Written by Christian Nordqvist of Medical News Today. It is an excellent summary and refreasher of highlights surrounding the condition.

Concussion is also known as mild brain injury, mild traumatic brain injury (MTBI), mild head injury and minor head trauma. Some experts define concussion as a head injury with temporary loss of brain function, which can cause cognitive, physical and emotional symptoms. Concussion may also be defined as an injury to the brain generally caused by a jolt or blow to the head - in the majority of cases the individual does not lose consciousness.

According to Medilexicon's medical dictionary, concussion is "An injury of a soft structure, as the brain, resulting from a blow or violent shaking."

In sports medicine the term concussion is commonly used, while in general medicine MTBI (mild traumatic brain injury) may be used as well. Lay people are more familiar with the term concussion.

According to the Brain Injury Association of America males are twice as likely as females to sustain a brain injury. Those at highest risk of a brain injury are males aged 15 to 24 years. People who have had a brain injury are more likely to experience a subsequent brain injury. In 2008 there were 351,992 sports-related head injuries that were treated in hospital emergency rooms in the USA, according to the U.S. Consumer Product Safety Commission.

Researchers from the Centre de recherche en neuropsychologie et cognition, Université de Montréal, Canada found evidence that athletes who were concussed during their earlier sporting life show a decline in their mental and physical processes more than 30 years later.

What are the causes of concussion?

The brain floats in cerebral fluid which protects it from jolts and bumps. A violent jolt or a severe blow to the head can cause the brain to bump hard against the skull. This can result in the tearing of fiber nerves as well as blood vessel rupture under the skull, leading to an accumulation of blood.

Automobile accidents - concussions commonly occur from severe jolts to the head; this can happen when a vehicle suddenly loses speed or stops dead, causing the brain to jar (bash, bump hard) against the skull.
Sports injuries - especially contact sports, such as martial arts, boxing, rugby, American football, and hokey. Non-contact sports such as snowboarding and skiing as well.
Falls - any fall that results in a blow to the head or a severe jolt. The majority of concussion cases in very young children and elderly individuals in the USA and UK occur as a result of a fall in the home.
Horseback riding accidents - there were 11,749 cases of head injuries resulting from horseback riding accidents in 2008 in the USA, according to the U.S. Consumer Product Safety Commission.
Playground accidents - especially in playgrounds that do not have proper soft underlays.
Cycling accidents - according to the U.S. Consumer Product Safety Commission there were 70,802 cases of head injuries that resulted from cycling accidents.
Assaults - 11% of traumatic brain injuries in the USA are caused by assaults (people being attacked), according to the CDC (Centers for Disease Control and Prevention).

Different grades of concussion

Concussion is usually classified into 3 different grades. Below are three of the most widely used ways of classifying concussion:

Cantu guidelines
(Devised by Dr. Robert Cantu, medical director of the National Center for Catastrophic Sports Injury Research)
Grade 1 - Some amnesia lasting no longer than 30 minutes, no loss of consciousness.
Grade 2 - Loss of consciousness lasting no longer than 5 minutes. Amnesia lasting from 30 minutes to 24 hours.
Grade 3 - Loss of consciousness lasting more than 5 minutes. Amnesia lasting more than 24 hours.
Colorado Medical Society guidelines:
Grade 1 - Confusion. No loss of consciousness.
Grade 2 - Confusion. Amnesia. No loss of consciousness.
Grade 3 - Any loss of consciousness.
American Academy of Neurology guidelines:
Grade 1 - Confusion that lasts less than 15 minutes. No loss of consciousness.
Grade 2 - Confusion last lasts for more than 15 minutes. No loss of consciousness.
Grade 3 - Loss of consciousness (IIIa coma lasts seconds, IIIb coma lasts for minutes)

What are the signs and symptoms of concussion?

Signs and symptoms of concussion may not be noticeable straight away. (A sign is what a doctor can see, hear or feel, such as a rash, or slurred speech. A symptom is something the patient describes, such as a headache, or ringing in the ears.)
Immediate signs and symptoms may include:

Loss of consciousness.
Confusion.
Headache.
Slurred speech.
Dizziness.
Ringing in the ears.
Nausea.
Vomiting.
Amnesia.
Tiredness (fatigue).

The following signs and symptoms may not be noticeable for several hours, or even days:

Amnesia.
Depression.
Disturbed sleep.
Hyperacusis - sensitivity to sounds.
Irritability.
Lack of concentration, focus.
Moodiness.
Photophobia - sensitivity to light.

The following signs and symptoms may be linked to a more serious injury and medical help should be sought:

Prolonged headache.
Prolonged dizziness.
Dilated pupils.
The two pupils are not the same size.
Prolonged nausea and vomiting.
Memory loss does not improve.
Ringing in the ears.
Loss of sense of smell.
Loss of sense of taste.

Concussion signs and symptoms in children - this may be more difficult to detect in very young children because they may not yet have the ability to adequately explain how they feel or identify what needs to be reported. Signs may include:

Lethargy, listlessness.
Irritability - the child gets cross easily.
Changing sleeping patterns.
Altered appetite.
Walking and/or standing unsteadily (any signs of balance, dizziness problems).

Children - the following signs usually mean the child needs medical attention:

The child loses consciousness.
After attempting to stem the bleeding, a cut continues to bleed.
Any change in the way the child walks.
Bleeding from the ears.
Bleeding from the nose.
Blurred vision.
Confusion - the child does not know where he/she is, may not recognize familiar people.
Continuous crying.
Convulsion (seizure).
Discharge from the ears.
Discharge from the nose.
Dizziness.
Loss of appetite.
Prolonged headache.
Prolonged irritability.
Prolonged listlessness, fatigue, lethargy.
Repeated or forceful vomiting.
Speech is slurred.
Worsening headache.

How is concussion diagnosed?

Some sources say that most people can diagnose concussion if the symptoms are present immediately. If an individual has experienced a severe jolt or blow to the head which has left them dazed, confused, or wobbly they have concussion. However, a Canadian study revealed that most minor league hokey players are unable to identify a concussion or its related symptoms . Dr. Cusimano, a professor of neurosurgery, education and public health at the University of Toronto said "Serious misconceptions exist among minor league hockey players, athletes, coaches and parents when it comes to understanding the signs and symptoms of a concussion and its treatment."

Determining the severity of the concussion is more difficult because the signs and symptoms may not become evident until later. Mark R. Lovell, Ph.D., director of the University of Pittsburgh Medical Center (UPMC) Sports Medicine Concussion program, said that athletes may have severe concussion without becoming unconscious. In a report published in The American Journal of Sports Medicine Lovell explained that amnesia and confusion on the field after injury may be as important, if not more important, in making a return-to-play decision.

A GP (general practitioner, primary care physician) or hospital doctor will ask the patient details about the trauma (the blow to the head, the accident). It may be necessary to question the people who accompanied the patient. A neurological examination will also be done, which will include evaluating the patient's:

Balance
Concentration
Coordination
Hearing
Memory
Reflexes
Vision

If the patient is over 65 years old, fell from a height of over 3 feet, was involved in a vehicle accident, has been consuming alcohol or drugs, cannot remember what happened 30 minutes or longer after the incident, has short-term memory problems, has been vomiting, had a seizure, has bruising or cuts and scrapes on the head and/or neck, or appears to have a fractured skull, the doctor may order a CT scan.

Glasgow Coma Scale

Doctors often use the Glasgow Coma Scale (GCS) before deciding whether to use a CT scan. The GCS is a way for doctors and nurses to assess the severity of brain damage following a head injury. It scores patients according to verbal responses, motor responses (physical reflexes), and how easily they can open their eyes.

Eyes - Glasgow Coma Scale
Verbal - Glasgow Coma Scale
Motor (physical reflexes) - Glasgow Coma Scale
Brain injury will be classified in the Glasgow Coma Scale as:

A computerized tomography (CT) scan - this is a medical imaging method that employs tomography. Tomography is the process of generating a two-dimensional image of a slice or section through a 3-dimensional object (a tomogram). The medical device (the machine) is called a CTG scanner; it is a large machine and uses X-rays. A CT scan is generally accepted as better at looking at bleeding in the brain due to injury than an MRI (magnetic resonance imaging) scan. However, an MRI scan measures changes in brain function from concussion, helping structure return-to-play guidelines, researchers from University of Pittsburgh School of Medicine revealed.

Depending on how the doctor has assessed the patient, he/she may have to stay in hospital overnight. If the patient is allowed to go home the doctor will ask somebody to monitor symptoms for at least 24 hours - this may involve waking the patient up at specific times to check for consciousness.

What is the treatment for concussion?

Most concussion or mild traumatic brain injury (MTBI) symptoms will go away without treatment. In the USA approximately 1% of patients with MTBI require surgery.

Sex and prior history - prior history of concussion and gender account for significant differences in test results following injury, researchers from the Department of Orthopaedics at the University of Pittsburgh Medical Center, reported. Because of these differences, the researchers urge physicians and coaches to take an individualized approach to treating people with concussion.

Rest - experts say that the most important treatment is rest. It takes time for the brain to recover, which will happen more rapidly if the body is resting and getting a good night's sleep each night. The International Conference on Concussion in Sports stressed that children and teens must be strictly monitored and activities restricted until fully healed. These restrictions include no return to the field of play, no return to school, and no cognitive activity - including academic activities and at-home/social activities including text messaging, video games, and television watching.
Headaches - acetaminophen (paracetamol, Tylenol) is the best painkiller for headache due to a head injury. Drugs such as aspirin, ibuprofen and other NSAIDs should be avoided because they thin the blood and increase the risk of internal bleeding (hemorrhage).
Sports - it is important not to return to any sporting activity too soon. If you or your child had concussion, only do so when your doctor says it is OK. A study by researchers at the University of North Carolina, USA, found that athletes engaging in high levels of activity following concussion demonstrated impaired brain function, while those who engaged in moderate levels of activity demonstrated the best performance.
Alcohol - patients should avoid consuming alcohol, which can impede healing, until all symptoms have completely disappeared.
Migraine - migraine after concussion may indicate an increased risk of neurocognitive impairment, researchers at the University of Pittsburgh Sports Medicine Concussion Program found. They said that doctors need to exercise increased vigilance when deciding about managing a concussed athlete with post-traumatic migraine. They need to be extremely cautious about deciding when the patient can return to their sport.
Worsening symptoms - if symptoms worsen patients should see their doctor.

A person with a grade three concussion will probably be hospitalized if symptoms persist.

Concussion and long term depression

In a report authored by Robert C. Cantu, M.D., FACSM and published in Medicine & Science in Sports & Exercise, a study of 2,552 retired professional football players revealed that recurrent sport-related concussion appears to be related to an increased risk of clinical depression in retired professional football players.

Prevention of concussion

Helmets and other protective headgear - such activities as cycling, motorcycling, skiing, hokey, horse riding should only be done if you wear protective headgear. It is important to buy new protective headgear - not second-hand ones. Headgear will need to be replaced periodically.
Seat belt - wearing a seat belt has been proven to massively reduce the risk of head injury during vehicle accidents.
Driving under influence - avoiding drinking and driving, or driving under the influence of illegal drugs or as well as some medications.
Mouthguard - a good mouthguard can help prevent concussion in such contact sports as boxing, martial arts, rugby, American football, etc.
Your home - consider adding lighting to areas that may be hazardous. Be alert for clutter that may cause people to fall over. Most head injuries among very young children and elderly people occur in the home. If there are toddlers in the house place pads on sharp edges of furniture, place a gate on the stairs, install window guards.
Playgrounds - there should be an underlay of soft material, either sand or special matting.
Jogging in busy streets - wear bright colored clothing and use both your eyes and ears when crossing the road. Keep to the sidewalk (UK/Ireland/Australia: pavement).
Cycling at night - make sure your bicycle has good lighting both in front and behind. Wear bright clothing with reflectors.
Nutrition and exercise - a well balanced diet and plenty of exercise can help maintain good bone mass and bone density. This is especially important for seniors (elderly people) and post-menopausal women. Stronger bones may reduce the severity of brain injury following a blow to the head.

Tags: Publications, Traumatic Brain Injury, What Is Traumatic Brain Injury?, causes, symptoms, types

Overview of Catastrophic Cases

Posted on July 19, 2009 by Tim Titolo

Overview of Catastrophic Cases

Timothy R. Titolo

What Constitutes a Catastrophic Injury?

For many, the term “catastrophic injury” needs no definition. Most know a catastrophe when they see one. Federal law defines “catastrophic injury” as an injury whose consequence permanently prevents an individual from performing any gainful work. 42 U.S.C.A. § 3796b.Moreover, Nevada law includes a serious illness or accident that renders the employee unable to perform his/her duties and is either life threatening or requires a lengthy convalescence as a “catastrophe” for purposes of a public employee who wishes to take "catastrophic leave".Nev. Rev. Stat.§ 284.362; Nev. Rev. Stat.§ 281.153.

Types of Catastrophic Injury

Although Nevada law does not specify the various types of catastrophic injuries, the following classification from Georgia statute provides a good overview of examples of catastrophic injuries:

(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

(c) Severe brain or closed-head injury as evidenced by:

1. Severe sensory or motor disturbances;
2. Severe communication disturbances;
3. Severe complex integrated disturbances of cerebral function;
4. Severe episodic neurological disorders; or
5. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs 1.-4.;

(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

(e) Total or industrial blindness; or

(f) Any other injury that would otherwise qualify under this chapter of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act.

Ga. Code Ann., § 34-9-200.1.

Evaluating Liability and Damages

The Supreme Court of Nevada has held that damages in personal injury cases should be calculated based on modicum of rationality and not with mathematical precision. See Greco v. U.S., 893 P.2d 345, 418 (Nev. 1995). In Hill v. U.S, 854, F. Supp, 727 (D. Colo., 1994), the federal district court in Colorado considered the following facts in evaluating the economic damages in a catastrophic injury claim:

1. Expenses for periodical medical care that is required during the lifetime of the injured with regard to the nature of injury suffered. See id. at 730.

2. Expenses for present and future medication and supplies with regard to the nature of the injury suffered. See Id.

3. Expenses for providing and facilitating required personal care to the injured depending upon the nature of the injury. See id.at 730-31.

4. Expenses for providing psychological counseling to the family members of the injured to cope with the injured person’s demands and need and to assist them in providing care to the injured. SeeiId.at 731.

5. Expenses for appointing case management professional to assist in the planning, coordinating and supervising the care of the injured depending upon the complexity of the medical and physical care services required by the injured. See id.

6. Expenses for the special transportation facilities that the injured person’s physical impairment requires. See id.

7. Expenses for developmental assessment to monitor the developmental progress and to access the injured person’s needs. See id.

8. Expenses for rehabilitation services to give required physical therapy and other therapies such as occupational therapy, speech therapy etc., depending upon the nature of the injury. See id.

9. Expenses for special equipments required for the injured. See id. at 732.

10. Expenses for home modification that is required by the family to modify the home to accommodate injured person’s special equipments and needs. See id.

Apart from the above, economic damages are also awarded on the basis of future loss in earning capacity. See id.

Evidentiary Issues

I am writing from the perspective of a practitioner and have attempted to provide an overview of the evidentiary issues associated with litigating catastrophic injury claims, especially from the plaintiff’s perspective. My intent is not to provide an academic discussion that covers all aspects of this topic. However, for a deep and detailed discourse, please see 72 Am. Jur. Proof of Facts 3d § 363 (2007) which discusses these issues in the catastrophic brain injury context. I have used the foregoing resource as a reference point for organization and to identify key points.

Injury:

More often than not, in a catastrophic injury, particularly a traumatic brain injury, the injured person exhibits memory deficits. Even though such people cannot describe the situation exactly, the occurrence of the injury has to be ascertained by the circumstances surrounding the accident/incident. It is the duty of plaintiff's counsel to carefully analyze all available evidence about the accident and endeavor to integrate each of those facts into a cohesive narrative that shows the finder of fact that the defendant acted in a negligent manner. Plaintiff’s counsel should supplement the plaintiff’s deposition testimony with other prior statements if the plaintiff is unable to recall the facts of the accident. Counsel should be mindful, however, that such deposition testimony should corroborate rather than contradict the plaintiff's prior statements or testimony.

Elements to Establish:

The necessary elements to establish negligence by the defendant are long-established: a legal duty to the plaintiff, a breach of that duty, and damages proximately caused by the breach of duty. It is the plaintiff's ability to establish a prima facie case through circumstantial evidence which is of particular importance in claims involving traumatic brain injuries given the frequent inability of brain-injured clients to recall the specific facts surrounding their injuries. If the case is based on circumstantial evidence, the plaintiffs must present facts from which the defendant's negligence and causation of the accident by that negligence may be reasonably inferred.

Generally, causation of a medical condition and permanency of an injury must be established by testimony of medical experts. Such testimony must show that the indicators of a permanent disability resulting from the traumatic brain injury outweigh those to the contrary. Claiming damages for loss of earning capacity is generally recoverable when such loss is an immediate and necessary consequence of an injury.

Duty to plaintiff and the court’s view:

In the context of a brain injury case, whether defendant has a duty to the plaintiff is a question of law that has to be decided by the court. Once the court determines that one party owes a duty to another, it is important to know the scope and extent of the duty, namely the standard of care that the defendant had to meet and the actual care that the defendant took. Once the court has determined the appropriate standard of care, the jury addresses the factual question of whether that duty has been breached.

Further, there is no legal requirement that a jury make a damage award simply because liability is found. In determining the appropriate amount of compensation for such loss, the jury must consider the plaintiff's age and occupation, the nature and extent of the plaintiff's pre-injury employment, the value of the plaintiff's services and the amount of income that the plaintiff was earning at the time of injury. For ascertaining the damage, expert testimony is not certainly required, but it may be of assistance to the jury, especially on the issue of lost earnings. However, plaintiff's personal projection of future loss of earnings may be admitted where the future plans described by plaintiff are consistent with facts in evidence regarding his or her employment and educational history and where the plaintiff's projections are supported by expert medical testimony.

Damages:

A plaintiff may make a claim for money damages including actual damages, compensatory damages (including reimbursement for attorney fees and for retaining experts, compensation for medical injuries, subsequent injuries, disability, compensation for lost earning capacity, and plaintiff's personal projection of future loss of earnings). Any award of punitive damages is completely within the discretion of the fact-finder.

Plaintiff’s counsel should also be mindful of the duty to mitigate damages. In Nevada, the law regarding the mitigation of damages states that “[a] person who has been damaged by the wrongful act of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the damages, and he may not recover for losses which could have been prevented by reasonable efforts on his part or by expenditures that he might reasonably have made.”Lublin v. Weber, 108 Nev. 452,454 833 P.2d 1139, (Nev., 1992); Silver State Disposal Co. v. Shelley, 105 Nev. 309, 774 P.2d 1044 (Nev., 1989). Defense counsel should, of course, explore any possible failure to mitigate by the plaintiff as a potential defense to avoid or reduce a damages award.

The Nevada collateral source rule prohibits the jury from reducing the plaintiff's damages on the ground that the plaintiff received compensation for his injuries from a source other than the tortfeasor. Nev. Rev. Stat. § 17.130;Bass-Davis v. Davis, 134 P.3d 103, 110-11 (Nev. 2006). Plaintiff’s counsel should be mindful to object to any attempts by the defense to introduce evidence of other sources of compensation for the plaintiff. Introduction of such evidence can lead to a new trial for the plaintiff. See Davis, 134 P.3d at 111.

Discovery and Investigation

Generally, litigation discovery is governed by Fed. R. Civ. Pro. 26 for federal trials and Nev. Rev. Stat. Rule 16.2(b)(2) for Nevada state court litigation. However, my discussion is aimed at providing an overview of some of the specific discovery issues that arise in the catastrophic injury context. For a more detailed discussion, I refer you once again to 72 Am. Jur. Proof of Facts 3d § 363 (2007), which I have used to help organize this discussion and to identify salient points for this overview.

1) Information to be obtained from the plaintiff prior to commencement of litigation:

The discovery methods in such cases require a thorough prior knowledge of all the previous incidents surrounding the plaintiff’s injury to maximize the results of the trial for the plaintiff. Discussion with the plaintiff about the mechanism of injury, resulting symptoms and long term effects serves as a primary source of information. Plaintiff’s counsel may obtain necessary information from potential witnesses such as the physicians who treated the plaintiff both prior and/or subsequent to the injury, information from the family members of the injured describing the affect, frustration, post-injury emotional distress, and information from the plaintiff’s employer, and co-workers about the changes they have noted in the plaintiff’s ability to work.

2) Information to be obtained from medical expert.

The next step in the preparation of the discovery proceedings would be to consult the expert who will be called at trial as part of the plaintiff’s case. Besides obtaining the background information of the expert, the other important information to be obtained from the expert is his prior litigation history mentioning the percentage of cases in which the expert testified on behalf of the plaintiff and the defendant and also the educational and employment qualifications. Counsel should ask the expert regarding the date, location of the first contact with the plaintiff, the occasions on which the plaintiff will require treatment, tests performed (and the nature of the tests and their purpose and results), and the treatment provided to the plaintiff. Plaintiff’s counsel should pose questions to the expert regarding the expert’s opinion about the medical certainty that the plaintiff suffered an injury, cause of the injury, signs, symptoms, complaints, whether the problems exhibited by plaintiff were the result of that injury, and whether any pre-existing conditions have been distinguished from the injuries at issue.

3) Information to be obtained from economist or other expert regarding special damages

Plaintiff’s counsel must collect necessary information from economists or other experts being called in support of the plaintiff’s claim of damages, especially in cases where the plaintiff has lost his earning capacity. Expert opinion as to the plaintiff’s lost earnings should address losses suffered as a result of plaintiff's inability to perform household tasks, plaintiff's future costs for medical care, reduction of such amounts to present value and methodology for calculating present value.

Conclusion

A catastrophic case should not be taken lightly. There are ethical and legal considerations. Damages must be explored and developed properly. An inability to finance the development of damages may make an otherwise good case bad. An astute lawyer will recognize her limitations and ask for a more experienced lawyer’s help.

Tags: Car, Publications, Spine, Back, Neck and Bone, Truck, accident, attorney, back, bone, closed, collision, crash, death, head, injury, lawyer, motorcycle, neck, personal, wreck

Doing the Right Thing for the Right Reason

Posted on July 18, 2009 by Tim Titolo

Doing the Right Thing for the Right Reason

By Tim Titolo

When the phrase "pro bono" is put into the Westlaw search engine under Law Review Journals, you are prompted to select the following "related terms:" Benevolence, Charity, Gift, Gratuity, Largess and Philanthropy. Microsoft’s Encarta Dictionary defines "pro bono" as "done or undertaken for the public good without any payment or compensation." In the legal profession, "pro bono" is typically credited to the provider of services by a third party like a state bar agency. However no credit is given for services provided without third party assignment. Of course the obvious problem of manipulating free services "gratuitously" to those who do not need it, verses indigent parties, is real; so may be the incentive to voluntarily decline helping someone without resources if it is not credited as "pro bono." The point is that doing the right thing for the right reason is always a good thing.

Some attorneys are very accomplished in particular and specific areas, others practice in a more general way. It may not be particularly helpful or wise for a real estate attorney to take on a large medical malpractice trial; and visa versa. It may not be wise for a lawyer with virtually no experience in tax law to represent a client in an IRS hearing. The examples here are many; but the point is made.

On the other hand, a tax lawyer would be very useful in doing free legal work for an individual with IRS problems who can not afford legal services. A criminal defense lawyer may be able to provide competent representation for an accused person without resources. A lawyer with specific training and experience in particular medical areas could readily provide representation to a victim of injury when compensation is unavailable. In fact this area is fertile for gratuitous service.

I have a personal injury litigation practice. I try to keep the majority of my effort in the areas of brain injury. I have spoken publicly about the 3 things all brain injury cases require: liability, Injury and coverage – " LIC - an acronym I created "

That said, I feel it incumbent on my practice to help severely injured people and their families whose cases lack insurance funds, when, for instance, that person is comatose in the Emergency Room and physicians simply do not know what to tell the family. I will sit at the hospital and wait with these people for a good sign. I will ask the physicians if the coma will result in permanent damage (which I know it will) and then I prepare the family for the reality of the impending death or, sometimes worse, so called recovery.

After the recovery (from coma) I try to help the family with government benefits, health insurance, if any, medical arrangements and care for the

injured family member. I do this in addition to obtaining confirmation of assets, lack of insurance, or recovery of inadequate insurance "limits" from a tortfeasor. I do not take a fee for my service.

Pro bono work is needed by indigents all over. As Christ said when his apostles questioned his motive for allowing Mary Magdalene to waste fragrance on him when they could have sold it and used the money to help others, "the poor will be with you always…" Not for profit groups, like churches, shift providing for individual needs from indigent families to itself and thus relieve the government (other people of the state) from providing them. Likewise, lawyers should, when appropriate, relieve the public’s need for legal service (funneled through government agencies) by providing legal service for no profit to folks who are not otherwise able to receive that service. This may shift part of the burden from the state agency to the not for profit provider – the lawyer. This in turn will promote meeting the needs of the state’s pro bono needs by lawyers qualified to provide those needs.

The butterfly effect provides that a fluttering of a butterfly’s wings on one side of the globe can cause a hurricane on the other. The interconnectedness of everything is supported by the latest knowledge in the fields of physics and the cosmos. Doing your part, however small or large, can benefit the greater good.

Neither Clark County, the State of Nevada or anyone, other then the family helped, formally realizes that services were provided "gratuitously." But no matter, doing the right thing for the right reason is reward itself. If getting a pat on the back for caring and doing is motive for doing, it may inhibit some from doing good things when no one is looking. Hopefully the moments when something good is done when no one is looking, in my or any lawyer’s life, helps make up for some of the shortcomings in other parts of our lives. I hope so.

Timothy Titolo is a personal injury trial attorney representing clients with brain and spine injury. He is a frequently invited speaker at various brain injury associations around the country. He is the recipient of the 2002 Aurora Award, 2003 Award of Excellence, 2004 Jade Award, 2005, 2006, 2007. 2008 and 2009 Aurora Award for brain injury cases he has been involved in. He is a member of the Million Dollar Advocates and has obtained the largest verdicts and settlements in Nevada for persons with mild to moderate brain injury.

www.titololawoffice.com info@titololawoffice.com

Tags: Publications, Spine, Back, Neck and Bone, Titolo Law Office, attorney, bono, personal injury lawyer, pro

Evidentiary Issues in TBI Cases - Daubert Motions

Posted on July 18, 2009 by Tim Titolo

Evidentiary Issues in TBI Cases – Daubert Motions

(presented at the 2008 American Association of Justice Winter Convention)

Timothy R. Titolo

This article will address Motions in cases of Traumatic Brain Injury (TBI) seeking to suppress neuropsychological testing and testimony, and Positron Emission Tomography (PET) testing and testimony. We will also examine how to use Daubert to attack defense experts in TBI cases.

A.Codification of Daubert Trilogy

In 1993, the United States Supreme Court altered the way Federal courts consider the admissibility of scientific evidence, Daubert v Merrell Dow Pharmaceuticals, Inc.[1][4] In those decisions, the Court required trial judges to serve as gatekeepers who would exclude unreliable expert testimony whether of a scientific or non-scientific variety. In 1997 and 1999 the Supreme Court refined the Daubert decision in General Elec. Co. v Joiner,[2] and Kumho Tire Co. Ltd. V Carmichael.[3] The Daubert, Kumho Tire, and Joiner cases became, what is fondly referred to as, the “Daubert trilogy.”

1. Daubert

In Daubert, the Court listed a number of non-exclusive factors, which trial courts should assess in determining reliability of proposed scientific evidence. They include: (1) whether the expert's methodology has been tested, (2) whether the methodology has been published and subjected to peer review, (3) the method's rate of error when it has been applied, (4) the existence of standards and controls, and (5) whether the methodology or principle is generally accepted in its field.

2. Kumho Tire

The Court, in Kumho Tire, extended the same list to offers of non-scientific, expert testimony where appropriate, but added that courts should consider other reliability criteria where the Daubert factors are inappropriate.

3. Joiner

In General Electric v Joiner, the Court found that District court decisions on the admissibility of expert testimony are reviewed on appeal with an abuse of discretion standard.

4. FRE 702

The December 2000, amendments to Federal Rule of Evidence 702 codify Daubert and Khumo Tire. That Rule, as of 2008, states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Emphasis added)

The Committee notes on the proposed revision state:

While the admissibility of such evidence is, and remains, subject to the general principles of Rule 403, the revision requires that expert testimony be "reasonably reliable" and "substantially assist" the fact-finder. The rule does not mandate a return to the strictures of Frye v. United States, 293 F.2d 1013 (D.C. Cir., 1923) (requiring general acceptance of the scientific premises on which the testimony is based). However, the court is called upon to reject testimony that is based upon premises lacking any significant support and acceptance within the scientific community, or that otherwise would be only marginally helpful to the fact-finder. In civil cases the court is authorized and expected under revised Rule 26(c)(4) of the Federal Rules of Civil Procedure to impose in advance of trial appropriate restrictions on the use of expert testimony. In exercising this responsibility, the court should not only consider the potential admissibility of the testimony under Rule 702 but also weigh the need and utility of the testimony against the time and expense involved.

5. Federal Reference Manual on Scientific Evidence

The Federal Judicial Center distributed the Federal Reference Manual on Scientific Evidence[5], to all Federal Judges. The Chapter entitled Reference Guide on Medical Testimony, page 479, states,

While this reference guide does not propose legal standards to govern admissibility of medical evidence, it does provide a framework for legal analysis by describing the scientific and professional practices of physicians as they perform their professional duties and offer opinions on diagnosis, treatment, and internal and external causation.”

6. Daubert Motions

State Courts are responding to the trickledown effect of the Supreme Court rulings by adopting them, not adopting them or adopting portions of them. Therefore, plaintiff trial lawyers must understand how to deal with Daubert type motions since they will influence the evidence and proof presented to the jury and ultimately the case outcome. They must carefully review the specific state law to determine how, and to what extent, the jurisdiction has adopted, or not adopted, Daubert, Joiner and Kumho Tire, and whether their particular state’s evidentiary code differs from Federal Rule of Evidence 702. See, The Daubert Trilogy and the States, 44 Jurimetrics 351 (Spring 2004).

If you have handled a traumatic brain injury case then the chances are high that you have seen defense motions to exclude evidence. Those motions seek to exclude or limit evidence. They include:

1. Neuropsychological Opinions,

2. Positron Emission Tomography Tests,

3. Biomechanical Evaluations,

4. Duplication of Expert Opinion,

5. Duplication of Witness Testimony,

6. Vocational Rehabilitation Assessments,

7. Economic Evaluations, and

8. Life Care Plans.

To combat these efforts to devalue plaintiff’s case, lawyers need to know the science and law. This familiarity is essential to the creation of good law and prevention of bad law. We now turn to the issue of neuropsychological testing.

B.Neuropsychological Testing

The effect of Daubert and its progeny on Motions seeking to limit or exclude expert neuropsychological testimony and evidence is evolving as State Court’s deal with these issues.

Trial and appellate courts, in following Federal Rule 702 and Daubert’s progeny, will look very closely at the issues of sensitivity, specificity, reliability, and validity of neuropsychological tests utilized and administered. Similar arguments and analyses, on the way to proving general acceptance in the scientific community, show up in jurisdictions employing the older 1923 Frye test[6]. In either case, providing the court with more scientific information is essential. We are seeing courts scrutinize the qualifications of the expert neuropsychologist and the methodology she employs in arriving at her conclusions.

A 2007 Federal Ruling in the Bado-Santana, et. al. v. United States District Court for the District of Puerto Rico[7], found that plaintiff’s expert was qualified under Fed. R. Evid. 702 to render expert testimony on Mild Traumatic Brain Injury (MTBI) where the record showed that the expert was sufficiently experienced, trained, and educated to render expert testimony on MTBI. The court stated:

Rule 702 imposes "a gate-keeping function on the trial judge to ensure that an expert's testimony 'both rests on a reliable foundation and is relevant to the task at hand.’” United States v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002) (quoting Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))[8]…

The Rule 702 inquiry is a "flexible one, and there is no particular procedure that the trial court is required to follow in executing its gate keeping function under Daubert.” United States v. Diaz, 300 F.3d 66, 74 (1st Cir. 2002) (citing Daubert, 509 U.S. at 594))[9]…

The Court in Daubert suggested several factors to consider in assessing an expert's reliability: (1) whether the theory or technique can be and has been tested; (2) whether the technique has been subject to peer review and publication; (3) the techniques known or potential rate of error; and (4) the level of the theory or techniques acceptance within the relevant discipline.[10] …

These factors, however, are not definitive or exhaustive, and the trial judge enjoys broad latitude to use other factors to evaluate reliability. [Daubert at 196][11] …

The Bado-Santana[12] defendant, Ford Motor Co., filed a motion in limine, to preclude neuropsychologist, Dr. Margarida, from testifying that plaintiff, Tatiana Cortez, suffered mild traumatic brain injury. The case arose from an automobile accident in May 1999 where a Ford Explorer over-turned and Carlos Bado, the driver, died. Bado left behind his then pregnant girlfriend, co-plaintiff Tatiana Cortez, who was a passenger, and his daughter, who was born after the accident, co-plaintiff Carolina Bado-Cortez. Plaintiffs sued defendant car manufacturer for damages suffered from the automobile accident and claimed that the accident resulted from the manufacturer's negligence in manufacturing the vehicle. The manufacturer moved in limine to preclude the girlfriend from presenting all evidence at trial that she suffered Mild Traumatic Brain Injury because of the car accident.

1. “M.D.” Qualification Argument

The manufacturer moved in limine to exclude the expert's testimony on grounds that she was not qualified to testify about Mild Traumatic Brain Injury (MTBI) and her opinion was based on flawed methodology. The court ordered a Daubert hearing and found that the expert was qualified to render expert testimony on MTBI. The fact that she was not a neurologist or physician did not resolve whether she was qualified to render expert testimony on MTBI. (physician v non-physician argument). The American Psychological Association stated that neurological examinations were limited in their capacity to detect brain damage and that neuropsychological testing was the only means of diagnosing some forms of brain damage. Moreover, the record in the case showed the expert was sufficiently experienced, trained, and educated to render expert testimony on MTBI.

2. Admissibility v. Weight Argument

The methodology underlying the proffered expert testimony was scientifically valid and could have properly been applied to the facts at issue. This was true, the court found, even where the expert did not interview the girlfriend's treating psychiatrist and psychologist. (Failure to review prior condition argument that goes to weight not admissibility) The court stated that challenges to the methodology used by an expert witness were usually and adequately, addressed by cross-examination. Hence, the court denied manufacturer's motion in limine.

3. Causation Argument

Another issue we see the trial court dealing with is whether a neuropsychologist, who is not a “medical doctor,” can testify as to whether the mental impairments he measures are caused by a particular event. The Supreme Court of Florida in Grenitz v Tomlian[13], addresses the issue.

Grenitz, Id., wasPetitioners’, a doctor and a hospital, petition for review of a decision by the District Court of Appeal, Fourth District (Florida), reversing a jury verdict for the defense in an action brought by respondent, a brain-injured child. The lower trial court refused to admit testimony by the child's expert neuropsychologist as to the cause of the child's brain damage. The intermediate court's decision reversing the trial court conflicted with decisions of other district courts.[14]

The child's expert, a non-physician neuropsychologist, could not give testimony as to why the injury had not occurred weeks prior to the child's birth. The state's highest court found that the intermediate court had achieved the correct result for the wrong reason. The trial court did not err in disallowing the expert's testimony as to the medical causation of the child's brain damage. The trial court erred in limiting the expert's testimony as to 1) brain and behavioral development and, 2) the relationship of behavioral and functional patterns to human brain development, which was within the witness's expertise. The state's highest court based its holding on the expert's credentials, not the definition of the practice of psychology in Florida’s Statute.

The intermediate court's result was approved, but the reasoning was disapproved to the extent that it was inconsistent with the state's highest court's opinion. The decisions of the other districts were approved to the extent that they were consistent with the state's highest court's decision. The case was remanded to the intermediate court with instructions to reverse the final judgment and remand the case to the trial court for a new trial.

Similarly, the Circuit Court Judge in McCarthy v. Atwood[15], ruled on plaintiff’s motion in limine to exclude the opinion of a neuropsychologist, hired by the defendant, who evaluated the plaintiff. The injured plaintiff allegedly suffered a head injury in a motor vehicle accident and sued defendant driver. Pursuant to a motion by the driver, the injured party was ordered to submit to a medical examination.

The injured party filed a motion in limine concerning opinions by the expert regarding the examination seeking to exclude the testimony of a neuropsychologist concerning the cause or extent of his brain injury and resulting cognitive dysfunction and memory loss. The appellate court concluded that the expert could render medical opinions as to the injured party's mental ailments, conditions, and diseases as well as the relationship between his conduct and such ailments, conditions, and diseases, assuming that the driver showed the relevance of such opinions. However, the expert could not render an opinion that the injured party did or did not sustain a mild traumatic brain injury since such an opinion concerned the causation of a physical human injury. A medical doctor, the court reasoned, could only render such testimony, not a psychologist.

4. Observations

These recent court rulings[16] reveal some of the current trends of evidentiary motions and neuropsychological issues. Exclusions of neuropsychological evidence must meet
reliability thresholds and relevancy thresholds. What each of those thresholds is can be determined by the court. The issue, whether a neuropsychologist can state opinions as to medical causation, appears, in courts that have made rulings, to be that they cannot. They can however opine about the existence and extent of mental conditions. It is wise to have a medical doctor (neurologist or physiatrist) to testify as to causation and to point to the neuropsychologist for opinions of actual impairment levels.

C. Positron Emission Tomography

The most frequently studied biological process has been energy metabolism. Positron Emission Tomography (PET) measures this process and hence brain function. This is primarily because energy metabolism is closely linked to brain function, although in a very complex way. Energy metabolism and, therefore, brain function, is revealed through the study of three components of energy, which are normally physiologically coupled. These components are glucose metabolism, oxygen metabolism, and cerebral blood flow. Glucose metabolism is studied through the use of an analogue of glucose (i.e. deoxyglucose) labeled with a radiotracer such as Flourine-18 or Carbon-11. Oxygen metabolism is investigated with the use of Oxygen-15, and cerebral blood flow with Oxygen-15 labeled water. Because it is a tracer method, PET has the distinct advantage of being thus far the best modality for the detection of a wide variety of biochemical processes. In fact, it’s only limitation is chemical ingenuity and its inherent high sensitivity. Furthermore, one of its advantages is that PET has a high degree of quantification accuracy regarding changes pre- and post- intervention in brain regions with altered brain perfusion or metabolism. Unfortunately, interpretable PET data are almost never available for any individual prior to the incident, behavior or brain insult that led to the legal proceeding. Nevertheless, in current standardized settings, rigorously defined, PET data are very reproducible.

PET accurately localizes signal sources, thereby more closely identifying regions of the brain in terms of anatomy and function. Its most important application to date has been to map the hemodynamic responses to defined cognitive and affective stimuli to determine the anatomical loci sub serving specific brain functions in the cognitive, behavioral, and affective domains. The grossly oversimplified underlying assumption has been that cognitive functions are located in focal brain regions, though in fact that is unlikely the whole picture. Evidence from brain studies points to the notion that most complicated behavioral and psychological processes are not located in a single brain center. Neuronal circuitry regarding any one cognitive operation most likely extends into more than one circuitry, though in fact the concept of "localization" may refer to functions causally connected to specific neuronal circuits.

1. Literature

In 1990, the American Association of Neurology published a paper.[17] Almost 20 years ago, the AAN stated: “The role of PET in the evaluation of head trauma has not currently been established.” This statement is not grounds to exclude PET although defendants, when cited in their Motions in limine, frequently rely on it.

Since the AAN paper, much literature has been published supporting the reliability of PET. For example a 2003 paper, A study of persistent post-concussion symptoms in mild head trauma using positron emission tomography,[18]” was published stating,

Positron emission tomography (PET) using 2-[F-18]fluoro-2-deoxyglucose (FDG) in head injured persons with normal neuroanatomical scans has also indicated hypometabolism in frontal and temporal brain regions, with which deficient neuropsychological performance and post-concussion symptoms can be correlated.

Humayun found “…mild CHI patients even without discernible lesions can have glucose metabolic abnormalities that are consistent with their neuropsychological deficits.”[19] Ronald Ruff, Ph.D., a distinguished neuropsychologist in San Francisco, correlated PET with neuropsychological findings[20]. Many other studies, conclusions, and papers, published with similar correlations.[21]

Three current articles reaping the findings of prior studies are: the 2003 article Neuroimaging in Patients with Head Injury,[22] a 2004 article entitled 2-Deoxy-Fluorgluscose-Positron Emission Tomography Imaging of the Brain: Current Clinical Applications with Emphasis on the Dementias,[23]and the 2005 article Functional Neuroimaging and Cognitive Rehabilitation for People with Traumatic Brain Injury[24]. The references and citations in these articles contain a wealth of support for the admissibility of PET in traumatic brain injury cases.

The future goals of PET imaging in brain injury patients was recently delineated. PET studies are required to detect ischemic lesions that develop soon after head trauma and help to clarify the significance of ischemia both clinically and pathophysiologically in these patients. PET can also be used to diagnose patients with diffuse axonal injury in order to determine the extent of damage and prognosis. PET studies may help delineate reversible and irreversible lesions in order to direct therapeutic interventions towards preventing further damage.[25]

Clearly, the assessment of PET was developing within a few years of the AAN paper. The AAN’s failure to reassess its 1991 paper is not grounds to omit PET in traumatic brain injury cases.

2. Cases

Early cases dealing with PET include People v. Weinstein,[26] Hose v Chicago Northwestern Transp. Co,[27] Penney v. Praxair,[28] U.S. v. Gigante, , U. S. Mezvinsky. Only the 1997 case of Hose permitted the PET evidence. However, each of the other cases had specific distinctions from Hose that actually reveal how PET is useful when used appropriately. In Hose, the Eight Circuit noted:

There is also no question that the PET scan is scientifically reliable for measuring brain function.[29]

A 2006 New York case, Brown v. Allerton,[30]reveals that state’s reliance on legislative enactments:

In an action in which a claim for personal injuries is asserted, an X-ray, magnetic resonance image, computed axial tomography, positron emission tomography, electromyogram, sonogram or fetal heart rate monitor strips of any party thereto is admissible in evidence. (L.1993, c. 482 Legislation) (Emphasis added)

One must review the literature and science of using PET to educate Judges about how far from the 1991 AAN paper medicine, science and the law has come. The idea is to “corroborate” the existence of brain injury with other diagnostic tests and medical testimony. It is not a standalone test but is useful to the jury in understanding issues of brain injury and its effects on your client.

D. Final Comments

The rules of evidence, state precedents, and individual court’s interpretation of issues in TBI cases will continue to evolve. The crucial thing to be aware of is the latest scientific literature and how courts have applied, or not applied, Daubert. The correlations between PET and neuropsychological findings go a long way in corroborating traumatic brain injury. When used with other evidence and testimony from qualified medical experts as to causation, they go a long way in communicating your client’s injury to wary defendant, his insurance company, and their lawyers.

Being a good neurolawyer requires this scientific and legal knowledge not only to defend Daubert type motions but also to initiate them. Successful motions are filed around the country excluding bad scientific methods utilized by overzealous defense experts. For instance in Florida, this motion seeking to exclude the “fake bad scale,” created by Dr. Paul Lees-Haley was successfully invoked:[31]

The “Fake Bad Scale” (FBS) is unreliable and does not pass the standards set forth in Frye v. U.S. for the reasons set forth fully herein and highlighted as follows:

1) The FBS is biased against women, those with psychological problems and the truly disabled;

2) This FBS has been rejected at least twice by courts in Hillsborough County for failing to meet the Frye standards.

3) The FBS is unreliable and therefore unscientific because there is no uniform agreement as to the appropriate cut-off score to be used;

4) The FBS has not been proven to be reliable or scientific because it has not been subjected to independent review by the “Buros Mental Measurement Test Evaluation System.”

5) The FBS is unreliable because it scores points towards malingering or exaggerating when a patient acknowledges true symptoms of physical injury or psychological distress,

6) The FBS is unreliable because unlike every other scale in the MMPI-2, there is no scoring or administration manual for the FBS ,

7) The FBS is highly controversial with no general acceptance reached among the authors of the MMPI-2, the American Psychological Association, or the practicing neuropsychologists who utilize validity tests

Using Daubert motions offensively by plaintiff, in additional to opposing and defending those made defensively, will create good law and prevent bad law for future courts to consider in their rulings.

[1] Daubert v Merrell Dow Pharmaceuticals, Inc 509 U.S. 579 (1993).

[2] General Elec. Co. v Joiner, 522 U.S. 136, 118 S, Ct. 512, 139 L.Ed.2d 508 (1997).

[3] Kumho Tire Co. Ltd. V Carmichael 526 U.S. 137, 119 S. Ct. 1167, 143 L.Ed.2d 238 (1999).

[4] See, The Daubert Trilogy and the States, 44 Jurimetrics 351 (Spring 2004), Berger, The Supreme Court’s Trilogy on the Admissibility of Expert Testimony, Reference Manual on Scientific Evidence, 2d Ed., Federal Judicial Center 2000.

[5] Federal Judicial Center, Reference Manual on Scientific Evidence, 2d.ed., 2000.

[6] Frye v United States, 293 F. 1013; 1923 U.S. App. LEXIS 1712; 54 App. D.C. 46; 34 A.L.R. 145 (D.C. 1923)

[7] Bado-Santana, et. al. v. United States District Court for the District of Puerto Rico 482 F. Supp.2d 192, 2007 U.S. Dist. LEXIS 29117 (D.P.R. 2007)

[8] Bado, supra, 482 F. Supp.2d 192 at 194.

[9] Bado, supra, 482 F. Supp.2d 192 at 194.

[10] Bado, supra,482 F. Supp.2d 192 at 196.

[11] Bado, supra, 482 F. Supp.2d 192 at 196.

[12] Bado, supra, 482 F. Supp.2d 192.

[13] Grenitz v Tomlian 858 So.2d 999 (Fla. 2003).

[14] GIW Southern Valve Co. v Smith, 471 So.2d 81 (Fla. Dist. Ct. App. 1985), and Bishop v Baldwin Acoustical & Drywall, 696 So. 2d 507 (Fla. Dist. Ct. App. 1997).

[15] McCarthy v. Atwood 67 Va. Cir. 237 (2005).

[16] Santana, et. al. v. United States District Court for the District of Puerto Rico 482 F. Supp.2d 192, 2007 U.S. Dist. LEXIS 29117 (D.P.R. 2007); McCarthy v. Atwood 67 Va. Cir. 237 (2005).Grenitz v. Tomlian 858 So.2d 999 (Fla. 2003); McCarthy v. Atwood 67 Va. Cir. 237 (2005).

[17] Assessment: Positron Emission Tomography, Neurology, 41:163-167 1991.

[18]S H A Chen, D A Kareken, P S Fastenau, L E Trexler, G D Hutchins, A study of persistent post-concussion symptoms in mild head trauma using positron emission tomography, J Neurol Neurosurg Psychiatry 74:326–332 (2003).

[19] M.S. Humayan et al., Local Cerebral Glucose Abnormalities in Mild Closed Head Injured Patients with Cognitive Impairments, Nucl Med Com 10:335-344 (1989).

[20] R.M. Ruff et al., Selected Cases of Poor Outcome Following a Minor Brain Injury: Comparing Neuropsychological and Positron Emission Tomography Assessment, 8(4) Brain Injury 297 (1994).

[21] For eg., see, Therapeutics and Technology Assessment Subcommittee, American Academy of Neurology, Assessment: Positron Emission Tomography, 41 Neurology 163 (1991); M.A. Roberts et al., Neurobehavior Dysfunction Following Mild Traumatic Injury in Childhood: A Case Report with Positive Findings on Positron Emission Tomography (PET) 9(5) Brain Injury 425 (1995); Newberg and Alavi, Neuroimaging in Patients with Traumatic Brain Injury, Journal of Head Trauma Rehabilitation (December 1996); Alavi et al., Metabolic consequences of acute brain trauma: Is there a role for PET? J Nucl Med 37:1170-1172, 1996; ; N. Fontaine et al., Functional Anatomy of Neuropsychological Deficits after Severe Traumatic Brain Injury, 53 Neurology 1963 (1999); M. Bergsneider et al., Disassociation of Cerebral Glucose Metabolism and Level of Consciousness During the Period of Metabolic Depression Following Human Traumatic Injury, 17(5) J. Neurotruama 389 (2000);

[22] Newberg & Alavi, Neuroimaging in Patients with Head Injury, Semin Nucl Med, vol XXXIII, no.2 (April), 2003: 136-137.

[23] Va Heertumm et al, 2-Deoxy-Fluorgluscose-Positron Emission Tomography Imaging of the Brain: Current Clinical Applications with Emphasis on the Dementias, Semin Nucl Med 34:300-312, 2004.

[24] Strangman et al, Functional Neuroimaging and Cognitive Rehabilitation for People with Traumatic Brain Injur, Am. J. Phys. Med. Rehabil. Vol. 84, no.1.

[25] See, footnote 22 herein.

[26] People v. Weinstein, 156 Misc.2d 34, 591 N.Y.S.2d 715 (N.Y. Sup. Ct. 1992).

[27] Hose v Chicago Northwesterm Transp. Co., 70 F.3d 968, 43 Fed. R. Evid. Serv. 446 (8^th Cir. 1995).

[28] Penney v Praxair, Inc., 116 F. 3d 330, 47 Fed R. Evid. Serv. 277 (8^th Cir. 1997).

[29] Hose, 70 F.3d 968, 973.

[30] Brown v. Allerton, 2006 NY Slip Op 52092U; 13 Misc. 3d 1232A; 831 N.Y.S.2d 351; 2006 N.Y. Misc. LEXIS 3169

[31] Filed by JAMES R. HOLLAND II,Wettermark Holland & Keith, LLPC, 1 Independent Drive, Suite 3100, Jacksonville, Florida 32202, Telephone: 904/633-9300; DOROTHY CLAY SIMS, Sims, Stakenborg & Henry,P.A.,118 S.W. Fort King Street, Post Office Box 3188, Ocala, FL 34478‑3188, Telephone: 352/629-0480.

Tags: Daubert, Evidence, Publications, positron emission tomography

Brain and Spine Injury Law Blog : Brain and Spine Injury Lawyer & Attorney : Tim Titolo Law Office : Personal Injury & Wrongful Death : Car, Truck, and Motorcycle Accident: Las Vegas, Nevada

Published By
Timothy R. Titolo of Titolo Law Office

Autopsy on Fake Bad Scale

Use of FBS in Cognitive Malingering

The Adoption of the Scale

Bias Against Persons with Brain Injuries

The Courts

Critique of Butcher et al. by Ben-Porath, Greve, Bianchini and Kaufmann

Conclusion

References

An Autopsy on the Fake Bad Scale: The Political and Scientific Ramifications of the Methodology and Application of the Fake Bad Scale Against Persons with Brain Impairment

Use of FBS in Cognitive Malingering

The Adoption of the Scale

Bias Against Persons with Brain Injuries

The Courts

Critique of Butcher et al. by Ben-Porath, Greve, Bianchini and Kaufmann

Conclusion

References

Mild Traumatic Brain Injury

What are the causes of concussion?

Different grades of concussion

What are the signs and symptoms of concussion?

How is concussion diagnosed?

What is the treatment for concussion?

Concussion and long term depression

Prevention of concussion

Overview of Catastrophic Cases

Doing the Right Thing for the Right Reason

Evidentiary Issues in TBI Cases - Daubert Motions