Chapter from: V.R. May and M.F. Martelli (Ed.) Guide to Functional Capacity Evaluation

with Impairment Rating Applications. NADEP Publications, Midlothian, Virginia, 1999.

Ethical Considerations in Impairment and Disability Evaluations

Following Acquired Brain Injury

Michael F. Martelli, Ph.D1,3, Nathan D. Zasler, M.D.1,2, and Revonda Grayon, M.S.2,3

1Concussion Care Centre of Virginia, LTD and Tree of Life, LLC

2Sheltering Arms Rehabilitation Hospital

3Virginia Commonwealth University

INTRODUCTION

Evaluations are routinely performed on persons with neurologic injury or impairment due to acquired brain injury (ABI) despite limited availability and receipt of training in this area. Further, most practictioners possess little training and/or expertise in identifying and coping with the various potential ethical conflicts that arise within the context of evaluations performed within the medicolegal arena.

Clearly, the forensic examiner's role as dispassionate truth seeker in the context of an independent examination (IE) conflicts with the customary and usually exclusive focus of training in medical and graduates schools as a treating doctor who maintains empathy and serves as an advocate for the patients health and well being. Within the context of an IE, a distinguishing feature that must be emphasized is that in order to maintain objectivity, no patient - doctor rapport is established, and no feedback is provided to the examinee. Specifically, the patient - doctor relationship is transformed to an examinee - examiner relationships, and the situation is distinctly different from the usual health care scenario involving expectancies of trust and assistance.

Importantly, the scope and content of an IE and the subsequent report, if truly objective, would be the same whether the examiner were hired by the defense or plaintiff attorney. Diligence in the manner in which these examinations are performed, along with clear communication regarding protection of the professional ethical standards of the examiner are necessary in order to facilitate objectivity. Hence, in the IE, the relationship begins with the examiner making clear to the examinee the unique intent of the assessment prior to beginning the examination, and that opinions regarding diagnoses, prognoses and/or recommendations will not be shared at the conclusion of the IE. The examinee presents voluntarily, except in the case of court mandated examinations, and it is an increasing practice for the examining clinician to assure consent by having the examinee sign a release for the IE with a witness present. Finally, this clear dichotomy in the context of the treating clinician versus the expert witness/ independent examiner produces wide discrepancies in terms of the type of evaluations performed, the scope of that evaluation, the time put into the evaluation, the goal of the evaluation as related to the individual good versus the social good, and the thoroughness of review of assessment methods and rendered opinions.

It is important to note that, as a group, physicians have all formally pledged to uphold the Hippocratic oath, which directs that first and foremost, they do no harm. Psychologists, who take no formal pledge, agree during state licensure proceedings to adhere to the formal +

professional ethical guidelines published by the American Psychological Association (APA) and any regulatory state guidelines. Again, the primary emphasis is on doing no harm to patients and others to whom psychologists have responsibility.

In a survey of the membership of the American Psychological Association (APA), 679 responses from randomly samples psychologists (Pope and Vetter, 1992) were collected

regarding ethical concerns in clinical psychological practice. Of the 23 categories into which critical incidents were separated, forensic psychology ranked as fifth among the 23 categories of reported incidents of ethical dilemmas, behind confidentiality, dual relationships, payment concerns, and teaching/training concerns. Major issues concerned the presentation of false testimony, the attorneys' role in procuring desirable (potentially false) testimony, rendering of conclusions not grounded in objective data or scientific principles, and the potential harm of reporting accurate data in forensic cases. The most bitter language, however, including the word "whore", was used to describe psychologists who seem willing to present false testimony in court and/or who succumb to alleged attorney's pressures or inducements for this kind of testimony.

In a more recent survey of the membership of the National Academy of Neuropsychology (Brittain, Francis, McSweeney, Fisher and Barth, 1997), 456 responses were obtained and the percentage of respondents expressing concerns regarding ethical dilemmas is as follows:

Notably, 50% said the APA ethics code was not sufficient to address ethical problems in neuropsychology, while 57% expressed dissatisfaction with the ability of ethics boards to enforce guidelines. A majority (57%) indicated that they would contact the colleague in the case of an ethical dilemma, while 20% indicated they would not and 23% did not express an opinion.

Clearly, within the context of professional ethics, most physicians and psychologists would acknowledge that they receive little formal training or education with regard to ethics in medicolegal / forensic situations. Undoubtedly, such issues are of primary concern to professionals practicing in the forensic and medicolegal arenas, the legal system and to entities that may make policy concerning the training and certification of professional competency.

When an examiner's ethical conduct is more dependent upon experience and personal thresholds, versus formal, clear and well accepted guidelines and focused training, the potential for problematic ethical dilemmas becomes easily recognized. Given juxtaposition of scientific ethics against the clearly disparate professional ethics of attorneys, where adversarial client advocacy is legally required, the likelihood of problematic situations seems inevitable. Appreciation and sensitivity to the potential disparities between conflicting interests and ethics seems the most logical approach to protecting the ethics and objectivity of medical and psychological examiners while affording the courts and its representatives benefit of their expertise.

In the current chapter, relevant ethical issues are reviewed in order to highlight these disparities and illustrate prescribed ethical behaviors as they relate to many common aspects of medicolegal situations. Finally, recommendations are provided toward the goal of promoting objective and ethical conduct in medical and psychological practice.

NEUROPSYCHOLOGY AND EFFORTS TO PROMOTE ETHICAL CONDUCT

As previously noted, athough psychologists do not take a formal oath, they have a tradition that has emphasized ethical considerations and produced a comprehensive and formal set of published ethical guidelines. Neuropsychology, although a specific specialty within clinical psychology, has many distinctions in that its subject matter is clearly unique compared to other areas of clinical psychology. Neuropsychology has as its subject matter, the assessment of brain behavior relationships, or the measurement of abnormal cognition and behavior due to neurologic dysfunction. Because the field of neuropsychology has, over the last twenty years, played an increasingly important role in the area of assessment and rehabilitation of neurologic disability, neuropsychological assessment has become an increasingly desirable source of evidence in medicolegal situations. Until relatively recent years, however, the topic of ethical issues has received minor attention with regard to neuropsychological applications.

In one of the efforts to remedy this situation, Binder and Thompson (1995) discussed sections of the revised Ethical Principles of Psychologists and Code of Conduct (APA, 1992) with specific relevance to the practice of neuropsychological assessment. Notably, the 1992 revised Ethics Code does not include specific standards for the practice of neuropsychology. However a new section detailing standards for Forensic Activities (Section 7) was added and has special importance for neuropsychological assessment in medicolegal situations. Binder and Thompson interpret the Ethics Code within a neuropsychological assessment framework and make a number of recommendations for the adoption of ethical standards to more clearly structure the role of psychologists who practice forensic neuropsychological assessment. A summary of the their recommendations is detailed in Table 1 below.

Table 1. Binder & Thompson's (1995) Interpretations of the APA Ethics Code in regard to Neuropsychological Assessment.

Psychologists should aspire to:

Importantly, these recommendations represent a very useful attempt to provide clearer and more useful ethical guidelines. They not only offer hope for reducing problematic ethical dilemmas for neuropsychologists in medicolegal situations, but delineate guidelines with more general relevance to medical professionals, and set a model for emulation. As such, they will be referenced, as relevant, in the sections that follow.

ETHICAL ISSUES: INITIAL INTERACTIONS BETWEEN THE LAWYER AND EXPERT

It is important, within the context of initial clinician contact with an attorney, whether by phone or in person, for the potential expert to qualify themselves and define their professional purviews. Initial discussion of cases should be done in generic terms with the referring party in order to ascertain that the potential examiner is qualified to perform the requested examination. It is recommended that the attorney not use the parties names involved in the suit in the context of this type of exploratory conversation. Further, it is important for both the examiner, as well as the lawyer, to clearly and explicitly understand all expectancies, and for the examiner to accept the assignment only if both parties are agreeable to the others terms. It is imperative that within this context, the examiner convey to the retaining party, the scope of the assessment. In an example of failure in this regard, an attorney became upset with one of the authors when a couple of evaluations were apparently more comprehensive than expected, finding that two separate referred examinees were actually malingering some of their complaints. Given these potential ethical dilemmas, it seems prudent for examiners to send a brief description of what is included within the context of their independent examination. Both parties are best served by understanding the activities of the examiner ahead of time - the examiner, in the context of knowing that the retaining party is comfortable with the contents of the evaluation, and the retaining party, in the context of having a clear delineation of the scope of the evaluation.

Within the context of evaluating impairment and disability, it is the authors' strong opinion that in order for these types of evaluations to be useful, they must be comprehensive, holistic and functionally oriented. To serve this end, it seems a prudent recommendation that, subsequent to discussion, the attorney provide a formal letter delineating the tasks that are being requested of the examiner, the time frames for completion of these tasks, and any pertinent dates, including report due date, as well as deposition and/or trail dates, to the extent known.

Expertise and Qualifications in Medicine and Psychology

It has been previously noted that formal guidelines describing the qualifications to serve as an expert witness are only recently being developed and explicated by neuropsychological organizations. Binder and Thompson (1995), in response to the lack of specific standards regarding forensic work generated guidelines, based on interpretation of the APA Ethical Code. General Principle A of the American Psychological Association's Ethical Code for Psychologists implicitly addresses this issue:

This principle is especially relevant to the first three guidelines developed by Binder and Thompson, which cover issues relating to maintaining awareness of the relevant neuropsychological literature, seeking rigorous peer review to ensure competenc, limiting practice to boundaries of competence, and seeking consultation as appropriate.

In 1996, the American Medical Association published its Code of Medical Ethics through its Council on Ethical and Judicial Affairs (AMA, 1996). Although this document is relatively general, it does stipulate that "medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise". The code also notes that the "medical witness must not become an advocate or a partisan in the legal proceeding". Additionally, it encourages witnesses to inform attorneys of "...all favorable and unfavorable information developed by the physician's evaluation of the case".

There have been numerous other specialty organization publications dealing with recommendations for expert witness testimony. The American Academy of Physical Medicine and Rehabilitation's Board of Governor's approved a "white paper" on expert witness testimony in April of 1992. This document recommended the adoption of eight guidelines for physiatrists involved with expert witness testimony. Central to these guidelines is the concept that the expert witness functions to educate the court as a whole, as opposed to "representing either of the parties involved, even though the expert witness may have been contacted primarily by one party". The guidelines note that the ultimate test for accuracy and impartiality is a willingness to prepare testimony that could be presented unchanged for use by either the plaintiff or defendant. Further review of this document reveals several recommendations which warrant attention: 1) the physician should identify opinions which are personal and not necessarily held by other physicians; 2) a distinction should be made between medical malpractice and medical maloccurrence when analyzing any case, and 3) there should be a willingness to submit transcripts of depositions and/or courtroom testimony for peer review.

Especially relevant are guidelines which have been adopted by the American Academy of Neurology and developed by the American Board of Medical Specialties for the physician expert witness, which include the following two standards:

The above guidelines are frequently cited as a useful model for guiding expert witness qualification in clinical neuropsychology, in the absence of previously lacking formal standards set forth by neuropsychological organizations. With regard to the first standard, however, it should be noted that standards of training in neurology are considerably easier to demonstrate than in neuropsychology. Standardized medical school curriculum, standardized residencies approved by the American Board of Medical Specialties to insure common standard compliance, written examination of basic medical information for individuals with degrees from foreign medical school, and eligibility to sit for board specialty certification examinations all exist as clearly demonstrable criteria.

Clinical Neuropsychology, as a profession, has been making greater efforts toward standardization of training, but given greater variability, has tended to rely even more strongly on board eligibility as an independent criterion with which to evaluate education, training, and experience. The APA Division 40 definition of a clinical neuropsychologist describes the training while suggesting that the attainment of the ABPP/ABCN diploma is the clearest evidence of "competence as a Clinical Neuropsychologist."

Based on this definition, Loring (1996) proposed board eligibility as the standard for training for expert witness consultations. He further recommends that individuals not opting for board certification have their education and training independently evaluated by ABCN/ABPP to verify board eligibility. Such requirements would promote standardized practice of neuropsychology while also providing a measure of quality control for those who conduct neuropsychological assessments for forensic cases.

The second standard regarding subject matter competency proscribes the offering of opinions outside areas of a professional's competence. In addition, it requires continuing active clinical practice in the area relevant to expert testimony, for three of the previous five years from the date of testimony. The failure to define level of "active clinical practice" might seem somewhat problematic, although by implication, greater versus lesser levels of active practice would be more consistent with this principle. Consistent with APA Standard 1.05, which states that "psychologists . . . maintain a reasonable level of awareness of current scientific and professional information", Binder and Thompson offer that psychologists': remain aware of general trends in the relevant neuropsychological literature; use up-to-date neuropsychological tests and norms; rely on current knowledge; consider important demographic characteristics of individuals in making interpretations; and acknowledge limitations in current knowledge. An ability to discuss relevant research literature, accurately, and without notes, would be an obvious measure of this ability.

An additional issue with regard to identification of good expert witnesses in the area of evaluation of persons with neurologic disability relates to credibility. Aside from the issues discussed above, it should be noted that many practitioners flaunt multiple certificates hanging on their walls. However, for many organizations, these certificates represent little more that "vanity" boards, where eligibility requirements are hardly stringent. The integrity of the individual should, in part, of course, be measured by the quality of the organizations they belong to, and the thoroughness of the inclusionary process for each organization. Relevant questions include whether the certifying organizations required the individual to take some type of oral and/or written test, what other inclusionary criteria were employed, whether attendance is required at a certain number of approved courses per year, whether they are the primary certifying organization, and so on. Importantly, inquiries about manner of receipt of board certifications and diplomates in important, given that certifying organizations and clinical specialty boards may have, in their earlier years, allowed "grandfathering" in of persons who were not required to meet current inclusion requirements.

Examination of the individual's publication record, as well as the types of publications should be assessed. Relevant questions would include whether the articles were published in peer reviewed publications, and their recognized quality. In addition, record regarding lectures in area of expertise should be reviewed, as should the organizations for whom they have lectured, with an emphasis on looking for those that are nationally or internationally recognized. It is also important to critically examine an experts qualifications based in part on clinical, scientific, academic and administrative positions held, and the manner in which they gained appointment (e.g., the individual's historic performance, a voting process, or some less selective process).

Dual/Multiple Relationship Considerations

Multiple relationships potentially constitute an ethical dilemma for physicians and psychologists in the medicolegal context. For example, as indicated in APA Ethics Code, section 1.17:

With regard to the usual focus in clinical practice, there is a strong tradition in psychology relating to proscription of both developing personal relationships with persons who are current or former patients, or providing psychotherapeutic services to persons with whom a prior personal relationship exists. Clearly, this prohibition is intended, in the former situation, to protect a patient from potential exploitation in a relationship predicated on equal status by someone who maintains, or previously maintained, a relationship based on higher power or skills and dependency. In the latter case, the purpose is guarding against problems stemming from the pre-existing relationship obligations and biases conflicting with the prerequisite objectivity required by a psychologist for effective diagnosis and treatment. In medicolegal work, the latter protection is most relevant. A fairly consistent opinion exists that a pre-existing relationship of anything other than a very formal acquaintanceship would represent a potential conflict of interest and interfere with the objectivity required by an expert witnesses. As such, the presence of a pre-existing relationship should eliminate consideration from serving as an expert witness in the case where any other expert is available.

The only situation where an exception might occur, would be when no other expert is available or can be made available, or where declining to serve as an expert witness and the potential harm to the patient through deprivation of needed service outweighs threats to objectivity. Should such a circumstance occur, the only prudent course of action would seem to be to document the pre-existing relationship in the independent evaluation report, in detail, and to document procedures and safeguards employed in order to facilitate the highest possible levels of objectivity.

With regard to ethical conflicts due to potential multiple relationships of medical professionals engaged in standard medicolegal practice, Blau (1994) differentiated the following professional roles: 1) Treating Doctor, who has a special (usually empathic) bond with his/her patient, and whose role is to describe the "everyday" treatment procedures that were employed, and not offer opinions beyond those contained in ther their reports, or perform evaluations on the basis of anything other than mdedical necessity.; 2) Expert witness, who without prior knowledge of the examinee obtains special and extraordinarily complete information and for whom, in order to promote objectivity, no bond with the examinee is permitted; 3) Trial Consultant, whose function, consistent with the adversarial process, is to assist with critical scrutiny and impeachment of experts and opinions from the opposing side. As Blau notes, these roles represent different interests and obligations. Failure to set limits and avoid mixing of the conflicting interests inherent in these contrasting roles would undoubtedly reduce objectivity and compromise the opposing welfare's of the different parties to whom obligations are maintained.

Unfortunately, it is a frequently observed situation by the authors where treating clinicians are asked to serve as "expert" witness when other professionals are available. Such practice is understandable, but nonetheless problematic. This practice is appealing to attorneys for several reasons, including: a) ease, as the professional is already involved; b) inherent savings in time and/or cost to the patient's legal representative; and c) built-in tendencies for increased patient empathy and advocacy inherent in clinician-patient relationships. The problems include mixing of usually incompatible roles if the clinician agrees to take on the functions of an expert witness. The fact that clinicians seem to frequently accept these requests may be explained by the fact that typical ethical codes of professional conduct give greater emphasis to proscription of conflicts between professional and nonprofessional roles and activities that between differing professional roles. As argued by Strasburger, Gutheil and Brodsky (1997), these conflicting professional roles are "best avoided by offering the patients treatment record in lieu of testimony." He goes on to recommend that "the clinician who does testify as a fact witness should rigorously maintain role boundaries by declining to perform the functions of an expert witness, such as reviewing the reports or depositions of other witnesses". In other words, treating clinicians should provide testimony only as a fact witness. In situations where they cannot avoid testifying as an expert witness, they should acknowledge the inherent conflicts in both testimony and reports.

Interestingly, Mossman (1994) reminds us that, at a fundamental level, there are inherent conflicts in the context of all forensic testimony, given conflicts between the "obligation to tell the truth and the obligations of beneficence and non maleficence". He goes on to note that an individual's humanity is of paramount interest and that the expert witness is bound to respect that interest above all others. Medical experts fulfill their "physicianly duties" to do good and avoid harm in a different manner than in clinical practice by conducting honest and objective forensic evaluations and by testifying honestly, even when the information they obtain or impart supports a conclusion contrary to the examinees claim or immediate best interest.

With regard to the relationships between attorneys and psychologists, contrasting professional motivations and standards produce frequently conflicting interests. It should be noted that, just as financial incentive represents a potential threat to objectivity for patients, a similar threat exists for medical practitioners. Given the discrepancy between the adversarial patient advocacy of attorneys, and the dispassionate, objective scientific ethics required of physicians and psychologists, concern must necessarily be raised when one considers that attorneys are the usual referral source, payors and consumers of examination findings and reports from experts. Further, forensic and medicolegal evaluations tend to be conducted by a limited number of professionals in the community, which increases the likelihood that social relationships between referring attorneys and medicolegal evaluators will develop. It would seem naive, especially at a time when managed care is severely restricting health insurance payments, to think that attorney satisfaction with examiner findings is an irrelevant factor in the development of referral decisions, and formal referral relationships and/or social relationships. Subtle influences in interpretation of test results and adoption of adversarial and dualistic (e.g., either-or, black-white) tendencies in interpretation of findings would not be unexpected developments for which the expert examiner or witness may be completely unaware. Such subtle threats to the objectivity would seem especially likely in cases of greater ambiguity in either test results, behavioral observations or responses on measures of motivation and response bias.

The mere process of the referring plaintiff or defense attorney calling or consulting with the examiner to discuss initial findings and favorability to the client-attorney team represents an imperceptible invitation to join the client-attorney team. Depending on favorability of findings, additional consultations may be scheduled with the expert regarding methods of presenting findings and invariably, juxtaposing the findings against opposing counsel arguments. This represents a subtle but incremental team invitation. This invitation to join the client-attorney team then becomes much less subtle when the issues of validity of findings become equated with "winning" in court by favorable jury or judge ruling.

Equally important are the influences of an adversarial process which undoubtedly reinforces dualistic opinions. Uncertainties, shades of gray, and reservations are usually not conducive to an adversarial process and are often eschewed in the legal process. Hence, the initial selection of an expert is likely to be influenced by reputation and history with regard to the expert's tendencies to think, for instance, in "black and white" versus "shades of gray", or to find single causes versus multiple determinants of behavior. Much less obvious would be the tendency for social reinforcement and subtle increases and decreases of interest or ego approval, to potentially influence opinions in borderline situations. For example, in the case of ambiguous clinical findings where an opinion of either malingered or valid test results is rendered in an attorney consultation, an initially tenuous endorsement could inappreciably become strengthened by confirmatory bias. That is, the tendency to selectively considered evidence in accordance with existing bias could be fueled by the clinician/s underlying discomfort with expressing opinions that appear uncertain or displeasing to the retaining attorney.

Finally, it seems necessary to mention that in the changing health care climate, managed care and shrinking health care dollars and funded services have, for most physicians and psychologists, turned attention to external threats to health care quality. Perceived unfair treatment of both themselves and their patients by external health care forces may, unfortunately, remove focus from such internal threats to quality as problems with validity, utility, and ethics in professional medicine and psychology.

In a sense, many physicians, psychologists, and other health care professionals feel symbolically dethroned by managed health care administrators and organizations. Their value and worth is less assumed while their opinions and recommendations are questioned and constrained. Medical necessity, defined too often by bottom line business accounting, cost effectiveness demands and greatly increased accountability, are more prevalent realities in a low leniency, cost cutting environment. Unfortunately, economic factors create pressures to maintain accustomed standards of living by identifying new income sources for health care providers. Clearly, litigation represents one of the last unregulated frontiers. The lucrative attorney referral and medicolegal work atmosphere poses a real economic pressure for bias that ranges from subtle reinforcement of adversarial and dualistic opinions and ethics, to more blatant enticement to engage in the world's odest profession. As such, the typical health care professional should necessarily fear creeping adversarialism and assume that the maintenance of scientific objectivity will necessarily be difficult.

Some regular referral relationships between psychologists and attorneys are undoubtedly healthy and promote ethical behavior. There are certainly attorneys who would prefer a competent and unbiased "straight shooter". However, it appears, in the experience of the authors, that relationships between attorneys and medical professionals too often reflect, at a minimum, ideological similarities and biases. For example, in the case of personal injury plaintiff attorneys, a preference for sympathetic experts and those sensitized to impairment, disability and rehabilitation situations is noted. In contrast, defense attorneys tend to prefer more skeptical professionals who are inclined toward diagnoses of psychopathology (e.g., conversion disorders, anxiety, etc.) and symptom exaggeration and malingering, versus organic pathology explanations of purported impairments.

In an effort to propose a remedy, Brodsky (1991) offers one of the more promising recommendations regarding protection for medical professionals from blending of the disparate responsibilities between themselves and attorneys. Brodsky suggests an objectivity quotient where the number of cases in which there is agreement with the referring attorney is divided by the total number of cases. He suggests that base rate and referral difference be acknowledged and offers a preliminary cut off point of .8 or greater for suggesting preexisting bias. The present authors consider this a somewhat liberal cut off, and suggest a maximum of .7.

ETHICAL ISSUES: CONDUCTING AN IE

Informed Consent

Within the context of the actual examination, it is paramount that the examining clinician explain to the examinee the tests and the procedures being utilized in order to optimize examinee compliance with the testing. There are certainly ethical concerns germane to certain aspects of testing, including tests that evaluate for dissimulation (faking impairment) as well as such tests as drug assisted interviews, where the purpose of either or both tests may be to delineate malingering and/or conversional disorders versus true organic disorders. Examiners must be careful about such testing so as not to misrepresent the purpose of the testing to the examinee. That is, the testing must not be construed in a manner that further increases distrust in a process that, by its legal nature, is adversarial.

Many evaluations which are conducted from more traditional clinical referral sources, although not originally performed as medicolegal evaluations, become part of subsequent litigation proceedings. This is especially true in cases of injury and impairment. The medicolegal context clearly imposes special obligations and responsibilities for the medical professional. With regard to the psychologist and neuropsychologist, relevant professional ethical principles have been elaborated.

Section 1.21 of the APA Principles states:

Binder & Thompson's 1995 interpretive guidelines, which borrow from the APA principles, recommend that neuropsychologists:

This principle and related guidelines are probably more easily observed for evaluations conducted at the request of the plaintiff's attorney, who functions as patient advocate and has usually communicated the purpose and potential benefit of the evaluation. In addition, the manner in which feedback will be provided is explained. In contrast, requests for independent medical / neuropsychological evaluations of evaluation requests from defense counsel present a more problematic situation. The patient must be similarly informed regarding the purposes and nature of the assessment and the psychologist's relationship to the attorney or insurance company explained, along with information that feedback will not be provided directly to the examinee. Notably, the very nature of discovery in an adversarial legal system may promote distrust, and will likely produce a considerably different context in which performance on neuropsychological measures are observed.

As previously recommended, the use of informed consent forms in medico-legal situations and help to effectively manage informed consent issues. Some may, as proposed by Loring (1996) require that the examinee specifically indicate understanding by initialing each of several major points. Generally, however, the forms involve a thorough consent procedure and include most of the following:

Importantly, examinee expectancy in independent examinations is a topic that does not appear to have received much attention. Nonetheless, given the generally adversarial nature of the legal system, it could be expected that examinee suspicion would be fairly high, with a diminution of the usual trust associated with visits to health professionals. This suspicion likely plays at least some role in the responses and behavior of persons undergoing medicolegal evaluations.

In an interesting approach to evaluating the level of trust experienced by persons sustaining injuries, the first author collected survey attitudinal data from professionals who work with injured Workers Compensation (WC) patients. A summary of the preliminary data are offered in Table 2, broken down by the three sample groups: 1) Disability Evaluators, comprised of physicians, chiropractors, physical therapists and vocational evaluators; 2) Staff from a rehabilitation neuropsychology service; 3) Attendees at a case management conference, including over 50% WC case managers. These data are quite compelling. Overall, approximately 25% of WC patients are believed to be exaggerating or malingering, which suggests a general skepticism and distrust faced by injured persons during evaluations. In contrast, the majority of professionals filling out the survey believed they would be treated unfairly by the WC system if they were injured, suggesting the corrolary of a general skepticism and perhaps greater distrust of the extant systems that evaluate and treat injury and disability.

Table 2: Survey of Attitudes Regarding Workers Compensation (W.C.)
  Respondent Sample
  Disability Evaluating Professionals

(N=17)

Medical Psychology Service Staff

(N=7)

Case Managers

(N=16)

including 7 W.C. employees

Question      
1: % of Injured Workers Who Exaggerate/ Malinger 19.2 24.7 28.5

2: % Injured Worker that W.C. Insurance Treats < Fairly

49.2 62.5 23.2

3: % Employers Who Treat Injured Workers < Fairly

53.5 41.2 32.7

4: Likelihood Employer Would Treat You (if injured) < Fairly

43.75 54.2 46.4

5: Likelihood W.C. Would Treat You (if injured) < Fairly

60 65.9 48.9

IV-1: Avg. Yrs_Employed

25.8

10.2

8.9

IV-2: Avg. Education 18.2 19.3 16.2
IV-3: Sex 66% Female 57% Female 100% Female

Although these preliminary data are derived from small samples, and although generalizability across situations cannot be assumed, they nonetheless seem compatible with the levels of diffuse distrust observed by the authors in medicolegal situations. These data, if nothing else, highlight the importance of considering the presumably different set of motivational factors that operate on examinees who present to independent evaluations. In addition, they strongly argue for deliberate and thorough preparation of examinees prior to the examination.

Third Party Observers

State specific regulations and court orders sometimes permit attorneys and/or legal representatives to sit in on independent evaluations. Many examiners observe that the independent evaluation process is intruded upon by third party observers, where an additional and uncontrolled factor is added that may influence examinee behavior and performance. Less invasive, but still disruptive, in the opinion of the authors, is video taping of the independent examination. Probably least disruptive, but still somewhat of a threat to the integrity of the process, is the practice of audiotaping of independent evaluations.

An additional ethical threat is posed where the material of tests and test procedures is revealed. Unprotected disclosure of assessment instruments potentially reduces the validity of such procedures in future assessment situations with other persons, and hence potentially compromises the greater welfare of the public at large. In the case of psychological and neuropsychological tests instruments and procedures, task force committees of the APA have issued reports with specific guidelines intended to limit the disclosure of tests, in order to protect the integrity and security of test materials, and to avoid misuse of assessment techniques and data.

Notably, one of the tenets of the independent examination is that the examiner conveys only information that was garnered within the context of the exam, does not alter exam findings in any way, and does not document things that did not occur. At a less tangible level, the examiner makes objective clinical interpretations and inferences based only on dispassionate logic, devoid of personal interest or interests of others. Unlike attorneys, whose explicit purpose is as an adversarial advocate for their client, it must be understood that the examiner should function only as an advocate for the truth. Unfortunately, the adversarial nature of courts, legal proceedings and attorneys too often "creeps" into the scientific arena and introduces a significant and powerful threat to objectivity that can produce bias in persons functioning as scientists. This creeping adversarialism, when manifested in the examinations and opinions of scientists, then only increases the natural distrust generated by systems adhering to adversarial principles. Of course, these systems, by their nature, must attempt to discredit even the most objective scientific procedures and findings. Demands to be present and observe independent examinations may be either reaction to fear of adversarial or biased procedures from the examiner, with or without reason, or attempts to collect as much information as possible to build stronger adversarial arguments to impeach opposite opinions.

Additional Issues Related to Conduct of an IE

The more knowledgeable and diligent the examining clinician, the less likely they will incur potential liability involving such things as: physical injuries during the exam; physical or psychological injuries resulting from negligent assessment; financial injuries resulting from negligent assessment; outrageous conduct; defamation; conspiracy with requesting parties to commit fraud and/or breach of implied covenant in good faith and fair dealing; and/or intentional infliction of emotional distress on the examinee or their family.

Often in the context of performing an IE, the examining clinician requests that the examinee undergo additional testing as part of the assessment. Examiners and referring parties must understand that any type of testing, particularly invasive tests, potentially put the examinee and the evaluating clinician in a context of patient and treating physician. By more closely approaching the traditional doctor - patient relationship, the possibility of bias in terms of increased patient advocacy increases, and must be guarded against. In addition, there is also potential liability exposure to the examiner when the patient is sent for a procedure that has potential side effects. This is particularly true with any type of invasive testing.

It is also important for experts to be aware of the fact that there are generally discrepancies in terms of how lawyers perceive their role, relative to paying for preparation time for discovery depositions, as well as for time put towards reading of transcripts. As much as possible, these issues should be explicitly clarified before the examination in order to prevent disagreements regarding responsibility for paying such charges.

Further, experts are advised to remember that anything in their records is subject to subpoena. As a consequence, anything that is written in the chart of patient and/or an examinees file can potentially be used to impeach the examiner. Tongue and cheek comments and/or malicious comments in the context of chart documentation, for both ethical and logistic reasons, should be avoided. Notes, when taken, should be objective in content. Notably, although some experts recommend highlighting charts, this procedure potentially leaves room for flexible interpretation that can be used in impeachment efforts. The practice of taking notes and disposing of them subsequent to final report draft, is ethically controversial and may represent destroying relevant clinical data. Of course, arguments can be made for both positions.

Available Ethical Guidelines Regarding Documentation and Test Results

In an area where relatively well established guidelines have been offered, APA Ethical Principles, in Section 1.23 states:

Binder & Thompson, in their 1995 interpretive recommendations in regard to handling records included the guidelines that neuropsychologists should:

Clearly, medicolegal consultations require complete documentation of all related procedures conducted as part of the neuropsychological assessment. Frequently, subpoenas will be issued and experts in both the same and allied specialties will be reviewing the records, and appropriate documentation during the assessment is necessary to allow independent review. Generally, complete records, including everything from handwritten notes to computations conducted for all administered tests and normative comparisons, are included.

However, handling of raw neuropsychological test protocols presents a problematic situation in that ethical principles regarding both test security and integrity, and protection of patient against records misinterpretation by untrained persons, may conflict with disclosure needs. As a result, Binder and Thompson (1995) recommended several guidelines to allow observation of both principles, including: releasing data only with consent or upon subpoena; avoiding release of raw data to non-psychologists (e.g., instead releasing them to the opposing counsel's psychologist, by agreed arrangement); release only information germane to the purpose of communication; and appeal subpoenas of raw data in cases where patient harm is anticipated.

Available Guidelines and Assessment Procedures

Medicolegal referrals represent examples of situations where documentation regarding the evaluation and all procedures administered is usually closely scrutinized by opposing counsel and their team of experts. Hence, tests and assessment procedures selected for medicolegal circumstances usually represent measures with a stronger research data base, greater acceptance within the profession and greater established history of use in the courts. In neuropsychology, selection of such tests is in part a response to attacks on the scientific validity of neuropsychological instruments. However, as Loring (1996) notes, selecting an older and more established test appears at odds with section 2.07, which states:

(a) Psychologists do not base their assessment or intervention decisions or recommendations on data or test results that are dated for the current purpose.

and,

(b) Similarly, psychologists do not base such decisions or recommendations on tests and measures that are obsolete and not useful for the current purpose.

Binder & Thompson's interpretive previously presented guidelines regarding selection of test procedures recommended that neuropsychologists:

Loring (1996), similar to Binder and Thompson, emphasizes reliance on up-to-date tests and norms, but acknowledge that experimental procedures, new measures, and older versions of tests sometimes offer special benefits and, as such, represent useful procedures that require articulatation of the rationale for their selection.

ETHICAL ISSUES: REPORT CONTENT AND RELATED ISSUES

The following components represent necessary and usual parts of a comprehensive assessment that clinicians should include for any examinee: Examinee demographic details; referral source and party responsible for payment; basis of report; documents requested and reviewed, including those not received; history of present illness; past medical history; family medical history; psychosocial history; educational history; vocational history; military history, if applicable; legal history, if applicable; review of systems; comprehensive exam findings, including pertinent negative findings; diagnostic impressions; opinions regarding maximal medical improvement (MMI); causality and apportionment opinions; recommendations and relevant appendices.

It is important to delineate specific information relevant to opinions when reviewing documents which have served as the basis of the report. Although many lawyers feel this is a repetition of already available information, it is important to provide documentation not only to demonstrate that the records were reviewed, but also in order to allow for a further more deliberate analysis of the information, temporal relationship of complaints to the injury in question, analysis of symptom profile in correlation with the type of injury being claimed, consistency of reporting over time, findings suggestive for neurologic recovery pattern over time (or lack thereof), and clear delineation of inferential reasoning, among other purposes.

It is also important to acknowledge information that was potentially relevant to the evaluation, but unavailable or not provided. All too often, for example, examiners are not given an opportunity, or do not make effort, to interview corroboratory witnesses. This seems to be much more of an issue in the context of defense evaluation than for plaintiff examinations. To legitimate examiners trying to do a thorough job while acting as adversaries of truth, this can only be frustrating.

As part of the analysis of information and examination findings, it is paramount for an examiner to include in the report: an evaluation of the appropriateness of the diagnostic testing procedures and process; an estimate of the reliability and validity of the findings that served as a basis for impairment claims; an estimation of degree to which the measures used were specific and sensitive to the condition being examined; as well as the degree of confidence in interpretations and opinions offered.

Notably, many examiners feel uncomfortable commenting on the testing procedures and/or conclusions of other clinicians. However, the author's opinion is that objective assessment requires global analysis of opinions and that this type of commentary is inherent in performing an adequate and comprehensive evaluation of any case. Meticulous evaluation of pre-injury problems, including prior treatment, medical, psychiatric and otherwise, developmental difficulties (e.g. attention deficit disorder, or hyperactivity in school), psychoemotional problems during childhood, and learning disabilities, among other variables, must all be evaluated within the context of the clinical presentation. Prior injuries, surgeries, and past use of medication, among other factors, should be assessed, as should the frequency and severity, as well as functional significance of any complaint that is being claimed post injury which also was present pre-injury.

The individuals legal history, including police records, should be requested and reviewed, as this may have an impact on understanding current behavior. A history of certain types of legal problems may make an examiner more suspicious of certain reported symptoms; nonetheless, ethical imperatives require that examiners remain unbiased, complete an objective assessment, and not assume that individuals with certain types of background do not incur legitimate injuries.

A comprehensive examination, including assessment of neurologic and musculoskeletal systems should be conducted by the medical examiner to include measures of cognition as well as behavioral functioning. Inherent in such testing should be evaluations both from a physical, as well as mental standpoint of so called response bias (making a conscious effort to present oneself as better or worse than one really is).

Ethical Considerations When Submitting Reports

It should be noted that, just as ethical considerations clearly proscribe altering exam findings in any way, or documenting things that did not occur, they also proscribe leaving out, or altering, potentially salient information from forensic or other reports.

The matter of issuing report drafts prior to the final reports poses an interesting dilemma that represents a potentially great danger to ethical conduct on the part of an examiner, due to its introduction of an especially great threat to objectivity. Although such actions are quite consistent with adversarial advocacy, they clearly allow suggested input from a proclaimed biased party. If, for instance, an attorney requests that comments such as those regarding prior history (e.g., illicit drug use and/or criminal behavior) be deleted, when such information potentially impacts on client veracity, response bias, and/or current symptoms, an examiner is ethically bound to refuse such a request. Such a request asks the examiner to breach their professional ethics. The case of the retaining attorney making a request for changes to phrases or words in the report also raises special concerns. Since such requests are often made for "legal purposes" (e.g., to clarify technical points for the court), it must be advised that the examiner vigorously attempt to ensure that the original meaning and intent of the phrase or words are not altered by even very reasonable requests. In fact, a prudent recommendation might be to refuse any changes to a report that are requested by an attorney, except for correction of errors, given that such requests inherently raise appearance or suspicion of impropriety.

In the case of true errors occurring in the context of the report, or where important clarification of information in the report seems relevant, three options for the examiner are advised:

1) One option is to attach an amended page to the report;

2) A second option is to simply mark through the incorrect portion of the report - e.g. do not white out or mark out, but rather, simply, put a line through the incorrect portion so that the original print can still be read;

3) Another option would be to simply produce a corrected version and documenting both that this is an updated version and the rationale for producing it. The the original version would be maintained with all other examinee records and produced upon request.

With regard to sharing the examination results with the examinee, as previously noted, existing ethical guidelines and recommendations, and legal statues in most states, are clearly proscriptive. The authors recommend that a signed sheet be attached to the front of any type of independent evaluation, noting the potential dangers associated with sharing the information and/or report directly with the examinee. This should be a standard procedure, but is particularly helpful in the case of very disparate opinions from treating clinicians and/or the examinee.

It is also recommended that examiners have a disclaimer at the end of a report reiterating in general terms the basis of the report and the opinions, as germane to the expert's qualifications and training, and the fact that all opinions are given with "medical probability," or "neuropsychological probability", unless otherwise stipulated. It is also advised that examiners should include a statement noting that their conclusions are based, in part, on the assumption that the materials provided for review are true, correct, and complete, and that if more information becomes available at a later date, opinions are subject to change.

ETHICS AND OTHER PROCEDURAL ISSUES IN MEDICOLEGAL SITUATIONS

Release of Raw Psychologic Test Data

An issue of importance that is especially relevant to the practice of forensic neuropsychology is the release of raw test data. Attorneys may be taught to review raw data, such as individual MMPI responses, in an attempt to find material for cross-examination (see Faust, 1991). The potential use of raw data in this manner presents an ethical dilemma to the neuropsychologist who is requested to release the data. Binder and Thompson suggest that psychologists should attempt to avoid releasing such data to non-psychologists in general. However, when data is demanded via subpoena or court order, the neuropsychologist may need to use deliberate judgment to determine the most ethical action to take. Two legal options are currently available to the neuropsychologist faced with such a dilemma: (1) obey the court order, or (2) legally appeal it. Binder and Thompson recommend that psychological associations and state bar associations work together to establish procedures to handle this conflict between the APA Ethics Code and the law. More recent guidelines have been issued by the Committe on Legal Issuse of the American Psychological Association (1996), whose publication provides for coping with subpoenas or compelled testimony for client records or test data.

As a working guideline, recommendations derived from such efforts have produced an increasingly common and accepted practice of arranging to release raw data to the psychological expert retained by attorney issuing the subpoena. In this way, ethical considerations are protected while court ordered discovery proceeding are also respected.

Relatedly, Binder and Thompson's interpretation of the APA Ethics Code allows for the rendering of opinion in legal cases based on review of raw data and other relevant information gathered from a previously conducted neuropsychological assessment. While it could not be considered ideal to render an opinion concerning a patient without personally examining the patient, Binder and Thompson did not interpret this action as breaching any inherent ethical guidelines under the APA's ethical standards. Notably, Sbordone and Purisch (1996) describe the hazzards of "blind" analysis and offer a useful model for enhancing interpretation of neuropsychological test data.

Ethics Relating to Experts Talking with Treating Clinicians and Experts Hired by the Opposing Attorney Side

It is rare that examining clinicians are given the opportunity to talk with an examinees treating clinician and/or experts. This practice is questioned by the authors, who believe that every opportunity should be sought to seek out venues to facilitate communication with an examinee's treating clinician, not only to clarify potential questions based on record review, but to also develop a better understanding of the clinician's perspective on their own underlying commitment to their historical diagnosis of the examinee. That is, it is often difficult for a clinician who has been treating a patient for any length of time to see the faults within their own diagnostic formulations, if indeed, they exist. Sometimes by having the opportunity to talk with the clinician in question, one can get a better understanding of factors responsible for observed impairment and disability.

Other Ethical Conflicts for Clinician Experts:

There is a potential ethical conflict in the context of how an expert assists the retaining party in the medicolegal aspects of the case, above and beyond simply their own "independent opinion" regarding the examinee in question. Specifically, many experts often get involved in assisting "trial preparation" by commenting on other examiner' findings and methodology, thereby providing fodder for deposition, as well as trial questions of opposing witnesses. Ethically, this appears to cross boundaries, at least from the examiners perspective, and deserves recognition for how it potentially takes the examiner out of the role of simply an advocate for the truth and puts the examiner in more a position of advocate for the party retaining them.

Often, experts who are retained on a case are put into an awkward situation germane to their perceived obligation to the examinee who may or may not be their patient, to the examinees treating physician, and to the retaining attorney, particularly if the experts opinion differs from the opinion anticipated by the referring party. This is even more problematic in situations where an expert hired by a plaintiff's attorney opines that a patient has been misdiagnosed and/or mistreated. This can be further compounded in a scenario where the retaining attorney puts little or no credence in the examiner's opinion and ignores the feedback, potentially to the point of ignoring a diagnosis of misapportionment of brain injury and/or missing a non-organic diagnosis such as conversion disorder or malingering. In these types of contexts, the examiner is in a very awkward situation if they feel strongly that the patient is receiving inappropriate medical care and that prolonged inappropriate treatment is being promulgated by a medicolegal situation for a condition that the examinee does not have. This dilemma presents an untenable situation with no clear solution. Examples like this highlight the need to take a step back, both from a legal and clinical perspective, and clarify the multiple ethical obligations to different parties, including the patient, his/her family, the retaining attorney, the legal process as a whole, and the general welfare of society.

Another practice that we feel should be eradicated relative to the poor ethics that it demonstrates is when a clinician who is treating the patient represented by a given attorney discounts his legal and/or clinical assessed fees based on a poor outcome to the legal case. The common practice of taking a lean against moneys collected in a law suit also borders on unethical behavior as it tends to drive both diagnosis and treatment; that is, the clinician has the potential to become too invested in the diagnosis for which an award is being sought through the litigation process. This double edge sword makes it difficult for a clinician to objectively assess and reassess as necessary their diagnostic clinical impressions regarding a particular patient. Ultimately, clinicians who perform these types of services, based on liens against settlement, are interested in keeping their referral sources so they are less likely to be either efficient with regard to treatment and/or introspective with regard to analysis of their diagnostic impression(s).

We have also seen the unfortunate practice of clinicians who have been involved with a patient's treatment over a rather long period of time, backing out of treatment due to the pending and/or new involvement of other clinicians. This type of practice clearly is unethical as it breaches the physician patient rapport and the commitment to the patient previously made by that treating physician. These types of problems occur when physicians and/or clinicians are brought into a case who potentially have had ethical or other conflicts with treating physicians in the past, or when the treating physician believes that his position as a treated might be jeopardized.

Subpoenas and Medical Records

There are various ethical issues that impact on the subpoena process germane to a clinicians and/or experts records that we have not been explicitly discussed. When there is information in the record that is beyond the scope of the treatment being rendered to a patient, ethical protection of confidentiality produces questions about whether such information should be included with submitted records. A prudent ethical course seems to be to discuss this matter with the patient's legal representation. Motion to quash the subpoena is certainly an option in cases where potential harm from information release is anticipated, and/or where requests for irrelevant information seem frivolous or unnecessary. Of course, there are often conflicting arguments about what information, if any, should be withheld from a subpoena (e.g. personal notes regarding a case, attorney client work product, letters from the examiner to the retaining attorney, phone conference notes, etc.), just as there seem to be ethical differences of opinion regarding when a motion to quash should be attempted and/or requested.

Attorney Ethics Issues

Attorneys often produce interrogatories for their expert witnesses without reviewing these with the expert witnesses first. Ethically. this seems to be a breach of the relationship between the retaining party and the expert, yet it happens frequently. It would, therefore, seem preferable to have the expert review and edit interrogatories before formerly submitting them, and to not, as all too often happens, show the interrogatories to the expert just before the deposition, if at all.

Even more questionable is the practice which both authors have encountered of lawyers asserting that they have retained a particular expert when, in fact, they have not even contacted that individual, let alone agreed to formerly retain them on a case. This practice occurs particularly with experts who have some renown within their field of work and whose name may command attention by the opposing counsel. The implicit logic would be to produce a more expeditious settlement of the case. Such incident is, in the author's opinion, misrepresentative and untrue, and hence unethical.

It would seem logical that lawyers who retain experts should provide all pertinent records to the expert without preferentially "picking and choosing" which records are "relevant." Such a practice can certainly inject a bias, whether actual or perceived. The practice of knowingly withholding data that could be damaging to their client from the expert witness clearly violates ethical standards of medical and health professionals.

In the context of lawyer to lawyer interactions, attorneys who have retained an expert should adequately protect that expert from badgering in the context of depositions or courtroom testimony. This would include intervening when irrelevant lines of questioning are pursued that have no correlation or relevance to the case in question.

It is also important for lawyers and other retaining parties to understand that all too often the parties serving as experts are not necessarily the individual(s) conducting large parts of the evaluation. It is paramount, both from a standpoint of accuracy, as well as ethics, for the examining clinician to include in his/her report, who conducted what part of the examination. Additionally, any data that was interpreted by a third party, e.g. not the examiner, must be delineated within the report. From a qualitative standpoint, it is best to minimize and, if possible, avoid the use of "forensic extenders," in the context of independent evaluations for a multiplicity of reasons. Among these reasons include the lack of sophistication that "forensic extenders" have relative to the examining clinician in terms of identifying response bias, on the part of the examinee, as well as identifying more atypical variance of the cornucopia of clinical presentations that may be seen in the context of forensic evaluation. Clearly, from the standpoint of interpretation, such forensic extenders are certainly not adequately trained to interpret data at the level that the expert witness would be able to.

Use of Technicians by Psychologists and Neuropsychologists.

Notably, Neuropsychologists generally employ a technician to assist with evaluations, and the technician's responsibilities usually include administration and scoring of most, if not all, tests administered. The neuropsychologist reviews medical records, interviews the patient, interprets test data, integrates it with other information, generates inferences and writes a report. This practice appears to have become the prevailing community standard. However, the utilization of technicians is sufficiently problematic that it has been called into question, as previously noted, in the 1996 Report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology. Some of the previously mentioned reasons include concerns about the adequacy of technicians to: utilize behavioral observation information and appreciate qualitative aspects of test performance to maximize testing utility; detect and manage testing response bias issues. In addition, the utilization of technicians clearly reduces the time that the neuropsychologist spends with the patient.

Further, it is the experience of the authors that, when the "Doctor" administers tests, there is a greater likelihood of full test effort. The presence of a technician represents a potential source of error variance. They might be expected, in an uncertain number of cases, to encourage inclined persons to be less fearful of detection if they distort test performance, or to feel they have to exaggerate their problems because they do not trust the less experienced person who is not the "doctor", or fear that they might miss their problems. Further, the technician is not sufficiently trained, and therefore should not be expected, to be especially sensitized to possible motivational problems, or to modify the testing procedures to more clearly determine motivation, to provide feedback to encourage greater effort were it deemed appropriate, or to wrestle with issues about whether such efforts should be made in the forensic context.

In perhaps the most widely used and highly respected graduate text book in neuropsychological assessment, Muriel Lezak (1996) clearly emphasizes that the adequacy and utility of neuropsychological assessment depends on spending time with the patient. This recommendation would seem even more critical in the case of medicolegal examinations. The authors believe that the profession of psychology must more closely scrutinize whether the common practices of utilizing technicians potentially violate ethical obligations regarding the psychologist spending enough time with the patient.

Ethics and Expert Witness Fees

Clearly, in the context of forensic work, experts are typically paid at higher rates than they are for normal clinical service. This often becomes a controversial issue as germane to experts acknowledging why there are differences in their reimbursement rate for clinical versus forensic work. There are many clinicians who also have differential rates for different types of activities; e.g. record review may be charged at one rate, whereas court room testimony and time may be charged at another rate, whereas depositions, in their office, may be charged at a third rate.

Ultimately, it is our opinion that charges should be assessed for time rather than the particular forensic service being provided. We also think it appropriate to charge at rates higher than standard clinical care for several reasons. The scope of knowledge and skill base is very different in the context of providing expert witness testimony than it is for providing direct patient care. In addition, the stressors associated with being involved in the litigation process are certainly greater, as are the rigor of the standards, than clinical practice. Finally, the impact that being involved in such work has on a clinical practice must be considered, including the detraction from normal patient scheduling, issues of acquiring appropriate coverage in one's absence, and multiple other factors.

Nonetheless, there remain ethical issues pertinent to the impetus for clinicians doing expert witness work when it reimburses traditionally at a higher, sometimes much higher rate, than the same time spent doing clinical care. Financial incentive, in the author's experience, does seem to exert at least subtle influence in medicolegal assessment and opinions in numerous situations. Hence, it is imperative that fees not be contingent upon case outcome. Although we have seen several instances where rates are adjusted by the expert witness if the "case" does not go as well as intended, this undoubtedly introduces bias wherein the expert's opinions are differentially rewarded depending on findings and opinions and/or effects of opinions. Such behavior is clearly proscribed in both the APA and AMA ethical codes. Charges should be contingent on no other factors than what was agreed upon for the assessment and the time put into the case. In addition, experts should probably have fixed charges that do not change for particular users. That is, discount rates and/or different payment schedules should not be assessed to law firms who frequently make referrals or retain services. Such a practice clearly shows bias and appears to detract from the image of the evaluator as an advocate for seeking the truth versus someone seeking a constant paycheck by maintaining referrals from a particular source.

Finally, as noted by Shiffman (1997), because of potential relating to greed and opportunism, ethical standards for medical experts must include the need for "reasonableness" and "consistency" of fees. He defines "reasonableness" as the degree of similarity of fees charged by other witnesses in the same or similar specialties and localities. "Consistency" is defined as the degree to which fees are compatible with the other medical procedures of similar demand provided by the practitioner, and for similar time units.

Admissibility of Medical and Neuropsychological Testimony

The issue of admissibility of evidence is a topic which exceeds the purpose of the current chapter. However, issues relating to ethics regarding professional conduct and testimony are well established, and have been addressed in previous sections. Further, the issue of neuropsychological testimony provides an illustrative example of the both the interaction between

professional conduct, expertise, and ethics and the adversarial process of the legal system. For these reasons, this issue deserves careful consideration.

It should be noted that opinions vary greatly on the utility of neuropsychological testimony. For example, while not denying that neuropsychological assessment is worthwhile and clinically useful, Faust (1991) suggests that neuropsychological evidence does not have a sufficient scientific base from which to make legal recommendations. The author states that neuropsychological evidence "should be accorded little or no weight" (p. 205) in the courtroom. Faust delineates three issues of critical importance that render the practice of neuropsychological assessment problematic in the legal arena. First, "a clinical diagnosis may not relate in any clear way to the alleged consequences of an injury or event" (p. 206). The diagnosis of brain damage provides little functional meaning given the broad range of abilities of individuals who are labeled as such.

Second, "the clinician's role may change considerably when he or she moves from the clinical to the forensic setting" (p. 206). The APA Ethics Code dictates that psychologists take appropriate steps to minimize potential harm caused by diagnoses and recommendations.

Yet, in the case of forensic neuropsychological assessment "telling the truth may or may not coincide with the examinee's interests, and in the extreme case may even contribute to a sentence of death" (p. 207). This ethical dilemma taken from another point of view may lead some professionals to purposely misdiagnose in forensic cases. Binder and Thompson (1995) "wonder if some colleagues purposefully misdiagnose murderers as brain damaged in an attempt to prevent lawful executions. If such cases occur, the major harm is to the integrity of the profession and the practitioner" (p. 41).

Third, "scientific knowledge and research within the field may relate minimally to questions of legal interest" (p. 207). Broad generalizations may be required based on limited scientific knowledge of current neuropsychological tests. A key legal issue is the daily and future functioning of the patient. Faust reports that the correlation between neuropsychological test performance and daily functioning has not been adequately studied and yields mixed results at best. "In summarizing the state of research on neuropsychological test performance and everyday functioning in 1984, Dodrill and Clemmons stated 'Ethical standards and scientific rigor demand that we more specifically anchor our predictions about functioning in life on empirically based studies'" (in Faust, p. 210). Faust (1991) notes that for most tests and batteries, no research on everyday functioning has been conducted, and certainly such predictive powers cannot be presumed.

Importantly, because most neuropsychological test instruments were developed to detect the presence of brain injury, their validity was established with regard to the presence or absence of brain injury, and not ecological expressions in real world environments, where, again, the component skills are affected by a host of other variables not present in the laboratory. It should not be surprising then, that ecological validity has thus not been established for most commonly employed neuropsychological tests (e.g., Guilmette and Kastner, 1996)

While strong opinion has been expressed purporting that neuropsychological evidence is useless in court (Faust, 1991), Newman (1991) presents an opposing view. In discussing the issues of expert witnesses in general and with reference to neuropsychology specifically, he notes that nearly all types of expert witnesses have faced attacks on their credibility.

Binder and Thompson (1995) noted that the current attorney-psychologist relationship is cumbersome when faced with an ethical dilemma and recommend that a formal understanding between state bar associations and state psychological associations be developed. A common ethical dilemma in which the practices of attorneys and psychologists conflict is the use of raw test data, as discussed in a previous section. Ziskin & Faust (1988) affirm that tactics such as reviewing raw test data for individual responses to use for material in cross-examination are recommended to attorneys. As previously noted, the APA Ethics Code stipulates that psychologists take appropriate measures to prevent the use of raw data by unqualified persons, especially if such data may be used to harm the patient. The ethical position of the psychologist is placed in opposition with the attorney and the law if a subpoena or court order for data is submitted.

Newman (1991) cites system incongruence as a key issue in the process and problems inherent in expert testimony. That is, the clash is between two conceptual systems: the scientific method of the psychologist and the adversarial system of the attorney and legal arena.

Faust suggests that neuropsychological data be granted little or no weight in the process of legal decisions (1991). Newman (1991), in contrast to the position of Faust, suggests that limitations in certainty of conclusions drawn by psychologists does not render the testimony useless. Newman cites U.S. v. Brawner (1972) as a generalized comment on the testimony of psychologists: "The experts add to perspective without governing decision. The law looks to the expert for input and to the jury for outcome" (p. 244).

"The solution to the problems created when mental health experts testify must be arrived at by collaboration between the mental health system and the legal system maintaining the expert's role as a provider of perspective and input for the trier of fact will capitalize on the neuropsychologists' expertise as a trained observer of behavior. Guidelines, for both experts and attorneys, which direct the expert's testimony toward input and away from outcome, will maximize the value of such testimony within the judicial system. For example, although expert predictions as to whether or not an individual will behave violently are of limited value, delineating those circumstances and factors that increase the likelihood of violent behavior will enable judges and juries to better carry out the function they are obligated to perform." (p. 248).

Issues germane to the practice of forensic neuropsychology should be considered by entities making policy on professional guidelines and competency. Some critical issues include, for example, the following. (a) The considerable diversity in techniques among professionals may yield inconsistent data across different examiners. The lack of standardized practices is a serious criticism of the field. (b) Assessment of examinee credibility is often problematic in psychological assessments, but may be of special importance when the examinee perceives secondary gain for performing in a particular manner (e.g., avoidance of incarceration, financial gain). (c) The difficulty determining functioning prior to potential neurological impairment (Faust, 1991). (d) Issues relating to ecological validity, and the fact that most neuropsychological instruments employed for making inferences about impairment and disability have little demonstrable predictive power outside of the extremes for level of functioning. (e) The suggestion that "the forensic setting exacerbates the degree of error present in neuropsychological decision making and test interpretation" (Wedding, 1991; p. 237). Wedding cites examples of attorneys describing patients on the phone or in letters prior to being seen by the neuropsychologist. Temporal primacy may lead to such data being weighted more heavily in the assessment process, possibly resulting in confirmatory bias. (f) The psychological impact of testifying itself on the psychologist-expert is an often neglected issue: "the witness who feels attacked by an attorney is likely to take refuge in a position that may be far more rigid and dogmatic than the data themselves allow" (Wedding, 1991; p. 237). Finally, (g) Professional competency itself is a critical issue. "Wedding (1983) found an inverse relationship between confidence and accuracy in judges evaluating Halstead-Reitan protocols, and Faust et al (1990) found that many neuropsychologists were totally confident about decisions that were totally wrong in a study designed to test the ability of neuropsychologists to detect pediatric malingering" (Wedding, 1991; p. 237).

Junk Science, Admissibility and the Expert Witness

It must clearly be acknowledged that there are many excellent clinicians who make very poor expert witnesses. The skills that make a good expert witness certainly include being a good clinician, but it should also be understood that there are many individuals who at least come across as savvy, but may not necessarily be relying on "good science" in the context of their testimony as germane to such recent rulings as the U.S. Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993).

The use of "junk science" in the context of expert witness testimony has become an issue that has received increased attention within the confines of evaluation of persons with neurologic disability. Unfortunately, it has still not been adequately addressed and there are still many clinicians and groups of clinicians who are espousing "bad signs" and either over- or under- diagnosing acquired brain injury as a consequence. Clinicians, as well as lawyers, should be aware of parameters used to define good science versus bad science and keep these in mind when analyzing cases.

Notably, the Daubert standard represents a relatively new refinement of the previous Frye standard, and attempts to accomplish this by requiring that admissible scientific testimony be

supported by valid scientific theory or technique. Specifically Daubert requires that the scientific strategy or procedure has been: 1) tested; 2) published under peer review; and 3) well accepted within the relevant scientific community. The Daubert ruling appears to offer attorneys and the court a very useful strategy for evaluating the merit, and hence admissibility, of expert testimony. Given the complexity of many diagnostic procedures employed in impairment evaluation, close scrutiny of scientific methodology is warranted. Such evaluation procedures as neuropsychological assessment, functional imaging (e.g., SPECT, PET), quantitative EEG, to name but a few, have had historical predilections to be given greater weight than may be warranted based on the scientific literature.

The 'Daubert Citator' has recently been referred to on the Forensic Psychology-Psychiatry list server group on the internet (FORENSIC-PSYCH@MAELSTROM.STJOHNS.EDU), as a useful tool for researching new developments in the law of expert and scientific evidence in the wake of Daubert. It is available, along with databases, newsletters and resources covering science and the scientific method, psychology, statistics, crisis management, and information technology, through Science for Professionals, Inc. (see references). 990 N. Washington Avenue, P.O. Box 940, Green Brook, New Jersey 08812 [Tel: (800) SfP-1038; E-Mail:75242.3145@compuserve.com; Webpage: http://littech.com/sfp/ index.htm]

Innovative Prescriptions for Optimizing Ethical, Objective Medicolegal Practice

Several interesting approaches to addressing ethical issues in medicolegal situations have evolved recently. Two of these managed to surface on the Forensic Psychology-Psychiatry list server group on the internet (FORENSIC-PSYCH@MAELSTROM.STJOHNS.EDU). These are included for interest and heuristic value, along with an approach suggested by the authors.

Science Intensive Litigation

R. Chris Barden, an attorney and psychologist, has proposed an interesting approach for ensuring the highest levels of ethics and competency in medico-legal consultations. He introduces a rigorous method for intensively scrutinizing the qualifications of expert witnesses. The following message is reproduced, with permission of Dr. Barden, from the Forensic Psychology mail list server group on the internet. It relates to the deposition of an expert witness by Dr. Barden in a high profile forensic case.

Importantly, this "science intensive litigation" approach argues that only intensive review of expert qualification, and assurance of the most rigorous training, can keep improperly trained and misinformed "experts" under check by a legal profession engaging in "business as usual." Multiple publications in premiere journals, a Ph.D. or M.D. from a top 10 school, peer review editorial experience, extensive training in the philosophy of science, and a national award in a relevant field are suggested as minimal prerequisites.

However, less zealous, and more practical and potentially useful approaches to promoting ethical and competent medico-legal consultations have been delineated elsewhere, including within this chapter.

Unpaid Expert Witnesses

Brendan Phibbs, M.D., of the Padre King Community Hospital of Tucson, submitted this interesting approach.

Dr. Phibb's "unpaid expert witness" conception certainly represents an understandable proposal given his observation of "scientific perjury". His sorb interest in protecting science, and his somewhat altruistic intentions are admirable. However, the idealism of his proposal seems to exceed its practicality. In a capitalistic society, monetary remuneration is expected, and increasing levels of expertise usually produce increasing financial reward.

In contrast, the authors suggest a somewhat more practical approach that takes into account economic reinforcers and attempts to modify them to differentially reinforce objectivity and ethical practice.

Court Selected Experts and Court Hired Experts

The novel concept of court hired experts borrows from some trends observed in local courts in Virginia relating to court selected experts. Recently, judges have been noticed to play an increasingly active role in selection of experts for independent evaluations. Specifically, an increasingly common practice is for the presiding trier of fact to solicit a list or panel of experts from counsel/s, from whom the judge, or the judge in collaboration with opposing counsels, select the professional to perform an independent evaluation. Although initially noticed in situations where opposing counsel protests or attempts to block utilization of a particular expert, this practice seems to be expanding to other contexts.

As witnessed thus far, judges, as well as opposing counsels, can air opinions and personal knowledge about the objectivity and fairness of experts from the list. Decisions are then supervised, or made, by a trier of fact who attempts to ensure the process of selection of experts who, by consensus, will provide the court with the most objective and least biased information. . In this manner, experts are selected, and hence financially rewarded, on the basis of their consensually agreed upon objectivity and ethics, and not on their willingness to engage in subtle to blatant forms of 'scientific perjury'.

Increasing adoption of this procedure is advocated. With slight modification, it could even be expanded to include court hired experts. By allotting a fixed amount of money for experts and independent evaluations contributed to by the opposing sides in a case, the court, either through judicial selection following airing of opinions, or by consensual decision making, could select and hire experts.

This procedure includes at least two inherent safeguards against bias and unethical practice. First, because the experts would be selected on the basis of argued opinions, professionals with greater tendencies toward non-objectivity would be negatively evaluated, and rejected. For example, experts who are more willing to engage in "scientific perjury" or more inclined toward opinion biases that favor either defense or plaintiff cases, would be exposed. Secondly, because the court, and not a defense or plaintiff attorney, is hiring and paying the expert, financial incentives would not favor one counsel's side over the other, and information delivery would likely be more impartial. As such, court appointed experts, and to a greater extent, court hired experts, represent especially promising and useful approaches to promoting the highest levels of ethical and competent medicolegal practice.

Attending to and following these principles is certainly a prerequisite for ethical practice. However, the potential for bias will always exist, regardless of how stringent the set of professional ethical rules, or how diligently examiners try to follow established guidelines and internal principles. It should therefore be considered an imperative to establish, in our legal system, financial contingencies that reinforce objective, ethical practice, and dissuade less objective and more unethical tendencies.

OTHER IMPORTANT CONSIDERATIONS IN ASSESSMENT OF IMPAIRMENT AND DISABILITY AFTER BRAIN INJURY

Evaluation of disability following brain injury typically involves such contexts as social security disability application, personal injury litigation, worker's compensation claims, disability insurance policy application, and determination of competence to handle finances or other important life functions (e.g., parenting) or decisions. Traditionally, disability evaluations following brain injury have fallen within the purview of physiatrists, neurologists, neurosurgeons, and more recently, neuropsychologists.

In cases of severe injury with unquestionable severe and diffuse impairment, the consistency and apparent validity of opinion rendering among professionals is usually not problematic. However, in cases of less diffusely severe impairment, the consistency and validity of more traditional medical opinions becomes much more uncertain, and the evaluations and opinions of practitioners who specialize in neurologic assessment and rehabilitation are usually relied upon to a greater extent.

Importantly, the area of impairment and disability evaluation may be one of the more confounding and misunderstood areas of health care related work as it applies to treatment of persons with injury residua and/or functional limitations due to disease. The task of making determinations regarding impairment and disability in persons with neurologic impairment and injury is especially fraught with potential obstacles and confounding issues. This may be due to the frequently subtle yet complex nature of the deficits involved, as well as, the lack of formal, scientifically validated "rating systems" for most of the deficits associated with neurologic disorders. Disentangling the multiple contributors to impairment and disability is fraught with obstacles and requires careful scrutiny.

Given the frequent financial incentive to distort performance during neurological and neuropsychological assessment done for medicolegal purposes, assessment of patient motivation becomes a necessary component of such evaluations. This consideration is reflected in APA General Principle C, previously mentioned, which refers to the need to clarify professional roles and obligations and adapt methods to the needs of different populations, and to ensure that assessment's, recommendations, reports, and diagnostic or evaluative statements are substantiated by sufficient information and techniques.

Further, not only the medicolegal context, but also the influence of other internal and environmental variables, as well as the frequently significant consequences of determination decisions regarding impairment and disability, make the importance of ensuring accurate attribution, absence of response biases, accuracy of self-reported and examination displayed symptomatology, and useful sensitivity and specificity of assessment measures, and ecological validity, areas that cannot be underestimated. Table 3 includes a brief summary of indications, offered by Blau (1992), reflecting the importance of determining response biases and measuring true levels of impairment in medicolegal situations.

Table 3: Importance of Detecting Response Biases and Measuring True Levesl of Deficit in Medico-Legal Evaluations (Blau, T., 1992)
  • A. Causation
  • 1. For a wrongful act or omission to be at all compensable to the victim, it must be shown that the act or omission caused an injury.
  • 2. In cases involving significant physical trauma to the head, it is relatively easy to prove that at least some neuropsychological injury was caused thereby, although the level of damages may be in dispute.
  • 3. In cases not involving outward physical trauma, causation of a psychological or neurological injury is more difficult to prove (e.g. low level toxic fume exposure versus degenerative disease is difficult to discern). The addition of the possibility of malingering results in the case turning mostly on expert opinion regarding causation.
  • B. Damages
  • 1. In civil actions, a party is entitled to compensation for damages for injuries actually suffered (including future damages) as a result of a wrongful act or omission of the opposing party.
  • a. No neurologic or neuropsychologic deficits pre- or post-injury ----> no neurologic/neuropsychologic damages.
  • b. No neurologic/neuropsychologic deficits preinjury, but positive deficits postinjury ----> neurologic/neuropsychological damages awarded based on full deficit.
  • c. Neurologic/neuropsychologic deficits preinjury and increased deficits postinjury ----> damages awarded based on increase in deficits.
  • 2. A party's status as the result of an injury may deteriorate or improve over time. Hence, it is important to establish neurologic/neuropsychologic status immediately postinjury (as baseline) and reevalute serially.
  • 3. Because psychological and neuropsychological injuries are not overtly manifested, these injuries are more easily and more often malingered than other types of injuries (e.g. broken leg).

Bias and Ethics

A brief review of important sources of bias, or threats to objectivity, which require assessment during evaluation of neurologic and other impairments follows

Attribution Bias

Examinee attribution biases can confound accurate diagnosis. Examples include mistaking clinical entities like depression and sleep disturbance and concomitant memory and motivation problems for brain injury or other neurologic sequelae. These conditions are reversible and may have even been present pre-injury without producing significant limitations. Furthermore, they may be interacting with true organic brain injury symptoms to increase impairment.

Examiner misattribution can similarly occur. Only methodical neuromedical assessment can differentiate sequelae secondary to brain injury from: cranial/cranial adnexal and cervical trauma impairments, chronic pain symptoms versus psychologic sequelae, motivational factors and/or other non-organic factors. Tendencies toward "over-diagnosis" in the case of neurologic disorders such as mild traumatic brain injury given "abnormal" neurocognitive findings and/or non-specific somatic complaints not exclusively pathognomonic of brain injury can only be avoided through careful differential diagnosis. Brain injury specialists sensitized to neurologic symptoms have been observed by the authors to misdiagnose chronic pain sequelae as post-concussive symptoms, which may result in an escalation of medical costs, prolongation of inappropriate treatment and eventual failure that produces helplessness and chronic disability in the injured person. Conversely, similar observations have been made for psychiatrists and psychologists prone to infer psychiatric etiologies for all pathology, including brain injury sequelae.

Response Bias

Formal response bias assessment procedures, which are frequently lacking or only haphazardly attended to in most clinical examinations, must be employed in order to assure that clinical exam findings are accurate and valid reflections of impairment. Response bias exists on a continuum that extends from denial and unawareness of impairments, through symptom minimization and symptom magnification, to malingering.

Denial and unawareness refer to organic phenomenon, usually more pronounced early after injury and typically associated with more significant neurologic insults, can lead to underappreciation of deficits due to dysfunction in brain operations subserving awareness.

Symptom minimization, in contrast, is consciously motivated, usually by either a desire to engage in activities that might otherwise be restricted, or as a defense against painful realizations about losses. Failure to detect such biases can lead to neglecting to identify important impairments and an overestimation of abilities that could potentially endanger the welfare of the examinee.

Symptom magnification, in contrast, refers to exaggeration of impairment. This can occur in relation to multiple factors and serve a wide range of psychological needs. Some examples could include efforts to: legitimize latent dependency needs; resolve pre-existing life conflicts; retaliate against employer or spouse or other; reduce anxiety; exert a "plea for help"; or solicit acknowledgment of perceived difficulties. Symptom exaggeration can also occur in patients with premorbid histories of psychiatric and psychoemotional problems who 'latch on" to a specific diagnosis which not only becomes responsible for all life problems, but also promotes passivity and helplessness and an external locus of control. When patients are assessed for claims of major disability following uncomplicated mild brain injury, non-neurologic and/or non-organic contributors should be closely scrutinized. Depression, post-traumatic stress disorders, anxiety conditions, and other psychiatric syndromes generally have favorable psychological and functional prognosis given timely and appropriate assessment and treatment. Misdiagnosis of these conditions serves to promulgate misperceptions and amplify functional disability and health care costs.

Physicians should be familiar with exam strategies designed to evaluate non-organic musculoskeletal and neurologic disorders, including the use of specialized bedside exam techniques for physical and cognitive "malingering". Examples include such strategies as Hoover's test for evaluation of malingered lower extremity weakness, sideways/backwards walking for assessment of feigned gait disturbance, and a positive Stenger's test on audiologic assessment for nonorganic hearing loss. Exam findings that suggest non-organicity include patchy sensory loss, pain in a non-dermatomal distribution (such as a midline sensory demarcation), non-pronator drift, and/or astasia-abasia. Measures of malingering, or deliberate symptom production for purposes of secondary gain should always be administered in cases of medicolegal presentation or suspicion of any disincentive to exhibit full effort. Any of several memory measures designed to assess atypical or worse than chance performance can be employed to assess response bias in cognitive performance (Nies and Sweets, 1994).

All evaluating clinicians should be familiar with non-organic syndromes that may present as organic disorders, including, for example, factitious disorder, malingering, and somatoform disorders (conversion disorders including non-epileptic seizures [pseudo-seizures], somatoform pain disorder, somatization disorder, and undifferentiated somatoform disorder). Of course, the presence of a nonorganic syndrome and/or response bias does not necessarily exclude the diagnosis of another organic syndrome. This certainly complicates the process of disentangling multiple clinical entities that sometimes co-exist. Unfortunately, the science and art of methodic differential diagnosis is too often underappreciated in the brain injury evaluation process (Zasler, in press).

With regard to neuropsychological assessment, response bias represents an especially important threat to validity. Because neuropsychological assessment usually begins with interview about self-reported symptoms and subsequently relies heavily on standardized measures of performance on well-normed tests, its validity requires the veracity, cooperation and motivation of the patient for obtaining valid performance measures. Recent evidence, however, strongly suggests that patients seen for presumptive brain injury related impairments over-report preinjury functional status (e.g., Lees-Haley, Williams, Zasler and Margulies, 1997). This is especially true with post-concussive deficits since these symptoms often appear with similar frequency in the general population (Lees-Haley and Brown, 1993). In addition, the demonstrated ability of neuropsychologists to accurately detect malingering in test protocols has been less than impressive (e.g., Loring, 1995). Finally, the common practice of utilizing technicians to administer tests, as previously noted, has been called into question for reasons that include adequacy to detect and manage response bias issues. Nonetheless, various instruments, techniques and strategies are available which have demonstrated at least some utility in detecting response bias, especially malingering, as a means of increasing confidence in motivation during neuropsychological tests, and hence the validity of performance findings.

In Table 4, some general guidelines and approaches to detecting response bias in neuropsychological and general assessment in medicolegal and forensic situations are presented.

Table 4. Detection of Response Bias in Independent Evaluations: Hallmark Signs
I. Inconsistencies Within and Between:
  1. Reported Symptoms
  2. Test Performance
  3. Clinical Presentation
  4. Known Diagnostic Patterns
  5. Observed Behavior (in another setting)
  6. Reported Symptoms & Test Performance
  7. Measures of Similar Abilities (intertest scatter)
  8. Items Within the Same Test (intratest scatter) - esp. when difficult items > easy items
  9. Different Testing Sessions

II. Overly Impaired Performance (vs. those with known impairment)

  1. Very Poor Performance on Easy Tasks Presented as Difficult
  2. Failing Tasks That All But Severely Impaired Perform Easily
  3. Poorer Performance Vs. Norms For Similar Injury/Illness.
  4. Below Chance Level Performance

III. Lack of Pathognomic Signs

IV. Specific Signs of Exaggeration/Dissimulation/Malingering

  1. MMPI Scale: F, F-K
  2. MMPI Subtle vs. Obvious Scales
  3. MMPI Gough (1957) Ds-R (Dissimulation) Scale
  4. MMPI-2 "Fake Bad" (Less-Haley, 1990)
  5. Malingering Detection Tests
  6. Memorization of 15 Items Test (Rey, 1941)
  7. Pankrantz Symptom Validity Test
  8. Wiggins & Brandt (1988) Personal History Interview
  9. Portland Digit Recognition Test (PDRT; Binder, 1990)

V. Interview Evidence

  • Non-organic temporal relationship of symptoms to injury
  • Non-organic symptoms, or symptoms which are improbable, absurd, overly specific or of unusual frquency or severity (e.g., triple vision)
  • Disparate examinee history/ complaints across interview or examiners
  • Disparate corroboratory interview data versus examinee report

VI. Physical Exam Findings

  • Non-organic sensory findings
  • Non-organic motor findings
  • Pseudo-neurologic findings in the absence of anticpated associated pathologic findings
  • Inconsistent exam findings
  • Failure on physical exam procedures designed to specifically assess malingering

Note: In evaluation of malingering, as in evaluation of pre- and postinjury status, the following investigative tools may be used in conjunction with client interviews and testing:

1) School records; 2) Medical records; 3) Driver records; 4) Service and Criminal records; 5) Employment records; 6) Evaluations from other psychologists; 7) Interviews with family members, friends, teachers and employers, etc.; 8) All materials available to the attorney through formal discovery or otherwise

Adapted from Rogers, R. (1988).

Importantly, these strategies are presented only as illustrations of indicators of important information for interpreting patient exam data. Integration of contextual information, history, behavioral observation, interview data, collaborative data, personality data, with measures of effort or performance (or symptom exaggeration or malingering) and neuropsychological performance data provides the best information for estimating, for instance, the degree to which a person was exerting full effort, and the degree to which test results are reliable and valid and reflect actual abilities.

In addition, these strategies are not intended to support a simple dualistic model that assumes examinees either try hard or malinger, or that evidence of less than full effort on any one test necessarily implies absence of impairment in other areas of testing or in real world abilities. They are also not offered with any specific guidelines (e.g., failure on any one, or any two, or any three, etc., represents inadequate performance, or symptom exaggeration or malingering). Rather, they are offered with the suggestion that: a) test performance can be influenced by multiple factors that include desire to perform with full effort; b) the degree of effort exerted on testing exists on a continuum (versus a dichotomy) and can be estimated by the /extent to which indicators of poor effort are absent; c) reliability and validity of neuropsychological test findings is dependent on relative assurances of full test effort; and d) interpretation and diagnostic impressions are dependent upon reliable and valid exam findings or test results.

It should be emphasized that "failure" on one test of response bias or malingering does not mean that the entire set of complaints are biased or malingered. Ethical guidelines universally caution against overzealous interpretation of limited test data. In fact, the only reasonable evidence of certain or definite malingering include the following two measures:

1) the person's or examinee's self-report - i.e., they tell you, or admit it;

2) the person or examinee is detected, via surveillance, performing an act they reported that they can not perform.

Finally, this table is offered with some reluctance. Given the disparity between the adversarial legal process and responsibility of attorneys to be patient advocates versus the dispassionate, objective scientific ethics expected and required of psychologists and physicians, the danger exists that attorney "coaching" based on utilization of this material might occur. This, of course, would then represent a form of "stealth" threat to the validity of examination data. Lest anyone underestimate this threat, or not recognize it as an expected consequence of collision between the disparate legal and scientific worlds, it should be noted that evidence of attorney client coaching regarding psychological evaluation was recently referenced by Youngjohn (1996) in a national publication.

CONCLUSION

Despite a paucity of training and ethical guidelines for involvement for physicians and psychologists in medicolegal and forensic work, attention is increasing in this area. Psychologists have recently become somewhat more diligent in efforts to address ethical issues in medicolegal contexts and have generated some specific recommendations from their more general and lengthy published professional ethics. Physicians have also paid increasing attention to the ethics of expert witness testimony and have begun to discuss many of the potentially problematic issues in this area of medicine. However, considerable additional work is needed, as attested to by results of surveys that indicate that published guidelines are less than sufficient to address most important ethical concerns.

Attending to and following available principles is certainly a prerequisite for ethical practice in psychology and medicine. Generating additional guidelines, with increasing specificity, and perhaps even inclusion of a case book of ethical dilemmas and recommended solutions in medicolegal situations, is also sorely needed and should assist in promoting ethical conduct. . Nonetheless the potential for bias will probably always exist, regardless of how stringent and specific the set of professional ethical rules, or how effortfully professionals attempt to follow established guidelines and adhere to the highest internal principles.

In order to promote higher levels of ethical and competent behavior in medicolegal contexts, contingencies should be established in our legal system that more effectively reinforce objective, ethical practice. In addition to the numerous guidelines mentioned in this chapter which attempt to foster ethical conduct, we have also attempted to offer other some novel solutions. Especially noteworthy proposals were those for increasing use of court appointed experts and consideration of use of court hired experts. These practical approaches offer promise by modifying contingencies to financially reward ethical and objective practice.

Finally, as consumers of medical and psychological information and testimony, attorneys have important influence on the adequacy and ethical conduct of professionals as it relates to this information. In closing, the authors offer the following recommendations for enhancing ethical relationships between expert clinicians and attorneys.

Promoting Objectivity and Ethical Conduct in Medicolegal Contexts:

Recommendations for Experts

  1. historical or behavioral observation information
  2. test findings
  3. discrepancies between plaintiff's complaints and observed behavior and/or history
  4. discrepancies between the severity of the injury and the severity of the reported symptoms
  5. discrepancies between opinions and know occurrence rates (or base rates) in the general population
  6. opinions and logical arguments of experts from the other side of the case, presented fully and in an objective manner

References

(1) American Academy of Physican Medicine and Rehabilitation (1992). Expert Witness Testimony. White Paper.

(2) American Medical Association (1993): Guides to the evaluation of permanent impairment, 4th ed., Chicago.

(3) American Medical Association, Council on Ethical and Judicial Affairs (1996-1997 edition). Code of Medical Ethics: Current Opinions with Annotations. Washington, D.C.: AMA.

(4) American Psychiatric Association (1993). Diagnostic and Statistical Manual of Mental Disorders (Rev. 4rth ed.). Washington, D.C.: APA.

(5) American Psychological Association (1995). Ethical Principles of Psychologists and Code of Conduct. Washington, D.C.: American Psychological Association.

(6) American Psychological Association, Committee on Legal Issues (1996). Strategies for private practitioners coping with subpoenas or compelled testimony for client records or test data. Professional Psychology, 27, 245-251.

(7) Barth, J.T., Ryan, T.V., & Hawk, G.L. (1991) Forensic neuropsychology: a reply to the method skeptics. Neuropsychology Review, 2(3), 251-266.

(8) Binder, Laurence M., Thompson, Laetitia L. (1995). The ethics code and neuropsychological assessment practices. Archives of Clinical Neuropsychology. Vol 10(1) 27-46.

(9) Blau, T. (1984). The Psychologist as Expert Witness. New York: John Wiley & Sons.

(10) Blau, T. (1992). The psychologist as expert witness. Presented at the National Academy of Neuropsychology annual meeting, Reno, Nevada.

(11) Brittain, JL, Francis, JP, McSweeney, A.J., Fisher, JM and Barth, JT. (1997) Ethics in Neuropsychology: Where are we now. Workshop presented at the annual meeting of the National Academy of Neuropsychology, Las Vegas.

(12) Brodsky, S.L. (1991). Testifying in court: Guidelines and maxims for the expert witness. Washington, D.C.: American Psychological Association

(13) Cifu, DX, Kreutzer, JS, Marwitz, JH, Rosenthal, M, Englander, J and High W. (1996). Functional outcomes of older adults with traumatic brain injury: a prospective multicenter analysis. Archives of Physical Medicine and Rehabilitation, 77, 883-88.

(14) Daubert v. Merrell Dow Pharmaceuticals (Daubert), 61 U.S.L.W 4805 (U.S. June 29, 1993).

(15) Demeter SL, Andersson GBJ, Smith GM (1996). Disability Evaluation. St. Louis: Mosby. American Medical Association.

(16) Dodrill, CB. (1997). Myths of Neuropsychology. The Clinical Neuropsychologist, 11(1), 1-17.

(17) Franzen, MD and Wilhelm, KL. Conceptual foundations of ecological validity in neuropsychological assessment. In: Sbordone, R.J. and Long, C.J. eds., Ecological Validity of Neuropsychological Testing. Delray Beach, Florida, St. Lucie Press, Inc., 1996, 91-112.

(18) Faust, D. (1991). Forensic neuropsychology: the art of practicing a science that does not yet exist. Neuropsychology Review, 2(3), 205-231.

(19) Forensic Psychology/Psychiatry<http://forensic-psych@maelstrom.stjohns.edu>

(20) Gans, JS. (1983). Psychological adaptation. Seminars in Neurology, 3, 201-211.

(21) Garrison, DH. (1991). Bad Science. Midwestern Association of Forensic Scientists Newsletter, October.

(22) Hawkins, ML. (1996). Serious traumatic brain injury: an evaluation of functional outcomes. Journal of Trauma, Injury, Infection and Critical Care, 41, 257-264.

(23) Hyman, A. and James, JW. (1973). Philosophy in the Middle Ages. 2nd Edition. Indianapolis: Hacket Publishing Company.

(24) Greenspan, AL, Wrigley, JM, Kresnow, M, Branche-Dorsey, CM and Fine, PR. (1996). Factors influencing failure to return to work due to traumatic brain injury. Brain Injury, 10(3), 207-18.

(25) Guilmette, TJ and Kastner, MP. The prediction of vocational functioning from neuropsychological data. In: Sbordone, RJ and Long, CJ eds., Ecological Validity of Neuropsychological Testing. Delray Beach, Florida, St. Lucie Press, Inc., 1996, pp 387-411.

(26) Hartman, DE. Ecological validity and the evolution of clinical neuropsychology. In: Sbordone, RJ and Long, CJ eds., Ecological Validity of Neuropsychological Testing. Delray Beach, Florida, St. Lucie Press, Inc., 1996, pp 113-127.

(27) Kay, T. Neuropsychological Diagnosis: disentangling the multiple determinants of functional disability after mild traumatic brain injury. In: Horn, LJ and Zasler, ND eds, Rehabilitation of Post-Concussive Disorders. Philadelphia, Hanley and Belfus, Inc., 1992, pp 109-128.

(28) Lees-Haley, P and Brown, RS. (1993). Neuropsychological complaint base rates of 170 personal injury claimants. Archives of Clinical Neuropsychology, 8(3), 203-210.

(29) Lees-Haley, PR, Williams, CW, Zasler, ND, Margulies, S, English LT and Steven KB. (1997). Response bias in plaintiff's histories. Brain Injury; 11(11), 791-800.

(30) Lezak, M.D. (1995). Neuropsychological Assessment. 3rd Edition. New York: Oxford University Press.

(31) Loring, DW. (1995). Psychometric Detection of Malingering. Paper presented at the Annual Meeting of the American Academy of Neurology, Seattle, WA. Malingering and Conversion Reaction, Michael Weintraub, Course Director.

(32) Martelli, MF. (1997). Evaluating Psychological Vulnerability to Impairment and Disability: A Model and Method. Training seminar for the National Association of Disability Evaluating Professionals, Gainseville, FL; San Diego, CA.

(33) Martelli, MF, Zasler, ND and Mac Millan, P. (in press). Mediating the Relationship Between Injury, Impairment and Disability: A vulnerability, stress and coping model of adaptation following brain injury. NeuroRehabilitation: An interdisciplinary journal.

(34) Martelli, MF and Zasler, ND. (1997). Response Bias Detection in Neuropsychological Assessment: An integrative approach. Grand Rounds presentation at the National Academy of Neuropsychology annual meeting, Las Vegas, 1997.

(35) Meyers, J.E. and Meyers, K.R. (1995). Rey Complex Figure and Recognition Trial: Odessa, FL: Psychological Assessment Resources.

(36) Mittenberg, W., Arzin, R., Millsaps, C., & Heilbronner, R. (1993). Identification of malingered head injury on the Wechsler Memory Scale. Psychological Assessment, 5, 34-40.

(37) Mossman, D. (1994). Is expert psychiatric testimony fundamentally immoral? International Journal of Psychiatry, 17(4), 347-368.

(38) Newman, R. (1991). The role of the psychologist expert witness: provider of perspective and input. Neuropsychology Review, 2(3), 241-249.

(39) Nies, KJ, Sweets, JJ. (1994). Neuropsychological assessment and malingering: a critical review of past and present strategies. Archives of Clinical Neuropsychology, 9(6), 501-552.

(40) Olsheski JA, Growick B. (1994). The Social Security Disability System and Rehabilitation in Review. NARPPS Journal, 8(4), 143-156.

(41) Pope K.S. & Vetter, V.A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47(3), 397-411.

(42) Pope K.S., Butcher, J.N., & Seelen, J. (1993). The MMPI, MMPI-2, and MMPI-A in court. Washington, D.C.: American Psychological Association

(43) Report of the Therapeutics and Technology Assessment Subcommittee of the American Academy of Neurology: Assessment: Neuropsychological testing of adults (1996). Neurology, 47, 592-599.

(44) Ruff, RM, Camenzuli L and Mueller J. (1996) Miserable minority: emotional risk factors that influence the outcome of a mild traumatic brain injury. Brain Injury, 8, 61-65

(45) Rutherford, W. Postconcussion Symptoms: relationship to acute neurological indices, individual differences, and circumstances of injury. In: Levin, HS, Eisenberg, HM and Benson, AL eds., Mild Head Injury, New York, Oxford University Press, 1989, pp 229-245.

(46) Sbordone, RJ. and Purisch, AD. (1996). Hazards of blind analysis of neuropsychological test data in assessing cognitive disability: the role of confounding factors. NeuroRehabilitation, 7, 15-26.

(47) Schretlen, D. (1988). The use of psychological tests to identify malingered symptoms of mental disorder. Clinical Psychology Review, 8, 451-476.

(48) Shiffman, M.A. (1997). Medical expert witness fees and the court. The Forensic Examiner, 6(5-6), 26.

(49) Social Security Administration: Disability evaluation under social security. A handbook for physicians. Social Security Administration, 1992.

(50) Strasburger, H., Gutheil, TG., and Brodsky, BA. (1997). On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154(4), 48-456.

(51) Swihart LM (1994): The independent medical examination for injured workers. National Medical Legislation, 5(2), 1-6.

(52) Tranel, D. (1994). The release of psychological data to nonexperts: ethical and legal considerations. Professional Psychology: Research and Practice, 25(1), 33-38.

(53) Trueblood, W and Schmidt, M. (1993). Malingering and other validity considerations in the neuropsychological evaluation of mild head injury. Journal of Clinical and Experimental Neuropsychology, 15, 578-590.

(54) Wedding. D. (1991). Clinical judgement in forensic neuropsychology: a comment on the risks of claiming more than can be delivered. Neuropsychology Review, 2(3), 233-239.

(55) World Health Organization: International Classification of Impairments, Disabilities and Handicaps, Geneva, 1980

(56) Williams, JM. The Malingering of Memory Disorder. In: C. Reynolds ed., Malingering and psychological assessment, in press.

(57) Wilson, BA. The ecological validity of neuropsychological assessment after severe brain injury. In: Sbordone, R and Long, CJ eds., Ecological Validity of Neuropsychological Testing. Delray Beach, Florida, St. Lucie Press, Inc., 1996, pp 413-428.

(58) Youngjohn, JR. (1995) Confirmed attorney coaching prior to neuropsychological evaluation. Assessment, 2(3) 279-283

(59) Zasler ND. (1994). Ten Point Checklist for Neuropsychological Assessment. National NeuroRehabilitation Consortium, Inc., Richmond.

(60) Zasler, ND. Neuromedical Diagnosis and Treatment of Post-concussive Disorders. In: Horn, LJ and Zasler, ND eds., Rehabilitation of Post-Concussive Disorders, Philadelphia, Hanley and Belfus, Inc., 1992.

(61) Zasler, ND. Impairment and Disability Evaluation in Post-Concussive Disorders. In: Rizzo, M and Tranel, D eds., Head Injury and Post-Concussive Syndrome, New York, Churchill Livingstone, 1996.

(62) Zasler ND. (1997). Prognostic indicators in medical rehabilitation of traumatic brain injury: a commentary and review. Archives of Physical Medicine and Rehabilitation, 78(8, Suppl4), 12-16.

(63) Zasler, ND (in press). Physiatric assessment in traumatic brain injury. In: Rehabilitation of the Adult and Child with Traumatic Brain Injury. M. Rosenthal, ER. Griffith, JS Kreutzer, B. Pentland (Eds.). Third edition. Philadelphia: F.A. Davis.