Transcript Compensation for Mental Injury

Forensic Neuropsychology in
Personal Injury Cases I
RUSSELL M. BAUER, PH.D.
JUNE 30, 2014
Compensation for Mental Injury
 law in this area is called “tort” law in the case of civil
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proceedings
governs compensation of individuals whose interests
have been violated
recognizes potential fault or negligence of injured
party
Neuropsychologists generally not concerned with
liability; “damages” is the focus
personal injury vs. worker’s compensation
Tort Law vs. Worker’s Compensation
 WC handled administratively; tort law handled
judicially
 WC regulated by legislature; tort law by the courts
 WC compensates according to fixed injury
schedule according to earning capacity; tort law is
theoretically limitless (e.g., pain and suffering, loss
of consort, etc.)
Worker’s Compensation
compensate injured workers for losses,
incurred during the course of employment, in their wageearning power
 actually the result of a different set of guidelines than
 designed to
“tort” law
 designed to allow workers to circumvent frequently
used employer defenses:
contributory negligence
 you assumed the risk
 another employee (who can’t pay you salary and
benefits) was responsible

Worker’s Compensation Criteria

an injury or disability
affecting wage-earning capacity
 facial disfigurement, loss of sexual potency doesn’t count
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arising out of or in the course of, employment
assumes causal relationship
 positional risk (injury would not have occurred “but for
employment”)
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which is “accidental”

some nonaccidents are compensable
Procedures for WC Claims
 Employee serves notice
 Medical examination
 Proceeding for Adjustment and Compensation
 administrative hearing before hearing officer
 once settled, claimant can’t take case to court for further
action
Mental Injury
 Physical Trauma Causing Mental Injury
 Mental Stimulus Causing Physical Injury
 Mental Stimulus Causing Mental Injury
Key Elements of Tort Law
 act or omission + causation + fault + protected
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interest + damage = liability
existence of duty owed the plaintiff by the defendant
violation of duty by the defendant
an injury “proximately caused” by the violation, and
the injury is compensable
Duty
 “an obligation, to which the law will give recognition,
to conform to a particular standard of conduct
toward another”
 we have certain duties, for example, when we
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Drive a car
Handle firearms
Maintain our homes
Etc.
Obligation
 Something you MUST do because of a law, rule,
promise, etc.
 Not fulfilling obligation (violation) can be by act
(commission) or by omission
 can be intentional or negligent
 negligence is “conduct which falls below the
standard of care established by law for the
protection of others against reasonable risk of harm”
Proximate Cause
 given the actions of A, could one reasonably foresee
the consequences that occurred?
 alternative: but for the actions/omissions of A,
event/consequences would not have occurred
 most psychological theories have elaborate causeeffect chains
 courts will generally recognize only certain aspects in
the chain of events as proximate causes
Compensable Damages
 an invasion of “legally protected interests”
 “feeling of harm” not sufficient; law must define
interests as sufficiently important or worthy of
protection to hold the person causing harm liable
for damages
 major importance of neuropsychological testimony
is in this area; extent of neuropsychological injury
 Compensatory damages: replace what is lost
 Punitive damages: punish offender as a deterrent
for future action
Mental Injury and Tort Law
 reluctance to compensate “mental injuries” without
some physical manifestation
 basic mental injury torts:
tort of intentional infliction (e.g., slander)
 tort of negligent infliction (e.g., residents emotionally
affected by flood damage)
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 the “predisposed plaintiff”
 the “as they are” principle
Predisposed Plaintiff: Aggravation
 Castillo v. Young – plaintiff with TMJ injury and pre-
existing TMJ condition from previous injury
 Physician testimony:
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“There are patients – it's like a truck. If you rear end a truck that’s full of bricks, you’re probably
[not] going to hurt your truck – you’re going to hurt yourself, not the truck. If you rear end a
truck full of eggs, you’re more likely to do damage than if you rear end a truck full of bricks.
Unfortunately I think in [Castillo’s] case, they rear-ended her being full of eggs. She was fragile. .
. . Any time you’ve had injury to a joint that would cause fracture of that bone, there has to be
consequence to the system, whether there [are] symptoms provoked at that time or not.”
 Eggshell jury instructions proposed (but denied):
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There is evidence that the Plaintiff had broken her jaw in 1983 and experienced a disk
displacement in her jaw prior to the December 20, 2000, accident. The Defendant(s) is liable only
for any damages that you find to be proximately caused by the Defendants' negligence relating to
the December 20, 2000, accident. If you cannot separate damages caused by the pre [sic] existing
broken jaw from those caused by the accident of December 20, 2000, then the Defendant(s) are
liable for all of those damages.
 Plaintiff awarded $13,058.67. Appealed to State Supreme Court, which
opined that the eggshell jury instructions SHOULD have been given,
and remanded the case for retrial
Issues in Evaluation
 potential examiner bias (in both directions)
 retrospective analysis of prior mental functioning
often critically important
 issue in damages: can the individual function “as
s/he was”?
 impact of mental/emotional reactions, some of
which are, themselves, compensable
 effects of litigation, distortions, malingering
Definition of Mild TBI
Traumatically induced physiological disruption of brain function
 At least one of the following:
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1.
2.
3.
4.
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any period of loss of consciousness
any loss of memory for events immediately before or after the accident
any alteration of mental state at the time of accident (e.g., feeling dazed,
disoriented, or confused)
Focal neurological deficit(s) that may or may not be transient
Exclusion Criteria:
1.
2.
3.
loss of consciousness exceeding approximately 30 minutes
after 30 minutes, a GCS falling below 13
post-traumatic amnesia (PTA) persisting longer than 24 hours
American College of Rehabilitative Medicine, 1993
Common Case Scenario in “Mild Head Injury”
• minor MVA with no or questionable LOC, PTA, but some
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indication of possible orthopedic injury
normal ED evaluation
delayed development of “de novo” cognitive problem
(e.g., memory, concentration difficulty)
subsequent referral to a neurologist-neuropsychologist
neuropsychological exam reveals abnormal
neuropsychological or neuropsychiatric test findings
indicative of “brain damage”
(JCEN, 19, 421-431)
(JCEN, 19, 421-431)
Conclusions
 Severe long-term sequelae of mild TBI are rare
(<10%)
 Mild TBI results in NP effect sizes that average less
than .5 SD
 NP evals in MHT have low PPV
 Therefore, some NP evaluations lead to “false
positive” diagnoses
Caveats (Bigler, 2001)
 The “lesion” is always larger than visualized
 Normal scans may not signify absence of pathology
 DOI scans may not be enough
 Long-term sequelae (e.g., accelerated aging)
“Noninjury” Contributors to
Neuropsychological Impairment in MHI
 Adversarial patient-examiner relationship
 Exaggeration or poor effort
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Impairment as communication
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Frank malingering for gain; financial incentives
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Factitious disorders
 Fatigue, pain, other physical factors
 Psychiatric disturbance (e.g., psychosis, anxiety, depression)
 Pre-existing factors affecting neuropsychological performance
(e.g., learning disability, limited education)
 Occupational/life experience factors
Financial Incentives and Disability
 Binder & Rohling (AJP, 1996, 153, 7-10)
 Meta-analytic review of financial incentives and symptoms
 18 study groups, 2,353 subjects
 Weighted mean effect size of difference between groups with
and without financial incentives was 0.47
 More late-onset symptoms in groups seeking compensation
Checks against False Positives:
Consistency Analysis
 Consistency of results between/within
domains
 Consistency with known syndromes

example: “hemi-anomia”
 Consistency with injury severity
 Consistency with other aspects of behavior
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e.g. memory abilities during vs. apart from formal
testing
Post-Concussion Syndrome
Post-Concussion Syndrome: DSM-IV Definition
 “acquired impairment in cognitive functioning,
accompanied by specific neurobehavioral
symptoms, that occurs as a consequence of
closed head injury of sufficient severity to
produce a significant cerebral concussion”
(LOC, PTA, etc.)
 Symptoms, cognition, balance
PCS: DSM-IV Criteria
A Hx of head trauma that has caused significant cerebral
concussion
B Evidence from NP testing or quantified cognitive
assessment of difficulty in attention or memory
C Three (or more) of the following occur shortly after trauma
and last at least 3 months:
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easy fatigue
disordered sleep
headache
dizziness/vertigo
irritability or aggression with little/no provocation
anxiety, depression, or affective lability
changes in personality
apathy or lack of spontaneity
PCS: DSM-IV Criteria (cont’d)
D. Symptoms begin after head trauma or else
represent a worsening of pre-existing
symptoms
E. Significant impairment in social or
occupational function; decline from previous
functional level
F. Do not meet criteria for dementia and are
not better accounted for by another mental
disorder
PCS-Like Complaints of NP Dysfunction
 Common
 Nonspecific
 Potentially related to non-neurological factors
(anxiety, depression, fatigue, stress)
 Correlate better with distress than with objective
indicators of CNS injury
 Easy to feign or exaggerate
Complaints as “Evidence”
 In the absence of objective neuro-psychological deficit,
complaints are often taken to indicate the existence of
occult disease
 There is a difference between symptoms (subjective
evidence) and signs (objective evidence) of illness
 Symptom reports subject to cognitive distortions and
attributional processes

Complaints (N=45) as “Evidence”
“She reports feeling tired, moving slowly, losing her balance, tripping over
things, and feeling weak and dizzy. She also reported increased sensitivity to noise,
altered perception of the ambient temperature (feeling warm when others are
comfortable), poor concentration, forgetfulness, finding once routine activities now
complicated, diminished sexual functioning, sleep problems, fatigue and low energy
level, anxiety and nervousness, “panic attacks”, lack of patience, decline in handling
household chores, fear of certain situations, decline in recreational activities, concerns
and worried about her health, depressed mood, decline in her ability to work, diminished
interest in pleasurable activities, weight gain of 55 pounds, feelings of worthlessness
and guilt, difficulty with language and word-finding, difficulty with concentration and
thought processing, difficulties with making conversation and understanding it, writing
slowly and illegibly, finding it difficulty to get started on things, trouble making
decisions, difficulty pronouncing words, forgetting people’s names, getting her mind off
certain thoughts, misplacing things, and becoming easily distracted. Scattered and
confused behavior permeates all aspects of her life. She also reports periods of time
where she becomes completely disoriented to her place and purpose. She experiences
severe headaches, shoulder, neck, back, and leg problems, severe depression and
cognitive dysfunction”.
Problems with Using Complaints as Evidence of MHI
 Mittenberg et al. (1992, 1997): “expectation as
etiology”
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‘imaginary concussion’ produces symptom complaint cluster
identical to that reported by patients with ‘real’ head injury
patients with minor TBI significantly underestimate degree of
pre-injury problems
Major PCS
Symptoms
“Imaginary
concussion”
produces a
pattern of
symptom
reports
virtually
identical to
that seen after
MHI
MHT patients
significantly
underestimate
preinjury
symptoms
compared to a
noninjured
control group
Base Rates of Post-Concussion Symptoms (Larrabee
( Larrabee,,
1997, based on Lees-Haley & Brown, 1993)
Symptoms
Headaches
Fatigue
Dizziness
Blurred Vision
Bothered by Noiseb
Bothered by Light
Insomniab
Poor Concentration
Irritability
Loss of Temper
Memory Problems b
Anxiety
aNon
Medical Controls
62%
58%
26%
22%
18% c
52% d
26%
38%
20%
54%
Non-CNS Litigantsa
88%
79%
44%
32%
29% c
92% d
78%
77%
53%
93%
CNS Litigants: in litigation for emotional or industrual stress, but not for CNS
injuries, bsignificant difference from controls at 1m, but not 1y in Dikmen et al.,
1986; c ”hearing problems in Lees-Haley & Brown, 1993; d”sleeping problems in LeesHaley & Brown, 1993
Conclusions
 You don’t have to have had a head injury to have
post-concussion symptoms
 Once something bad has happened to you, you
tend to attribute more of your problems to it
 Complaints reflect the subjective, not necessarily
the objective, consequences of MTBI
Implications for Understanding PCS
 5-8% of MHI patients have persistent deficits
 Physiogenic causes likely operative in the first 1-3
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months
Psychogenic causes important (though probably
not exclusively so) thereafter
Complaints have low specificity for MHI
Baserate issues important
Attributional processes important
Suggests need for a scientific approach to
assessing persistent complaints after MHT