NeuroRehabilitation - Volume 16, issue 2

Authors: Stern, Bruce H.

Article Type: Introduction

DOI: 10.3233/NRE-2001-16201

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 67-68, 2001

Authors: Taylor, J. Sherrod

Article Type: Research Article

Abstract: This article reviews the field of medical jurisprudence known as neurolaw which deals with the medicolegal ramifications of brain and spinal cord injuries. Placing emphasis upon how clinicians may work effectively with trial lawyers, it provides practical guidance to neurorehabilitation professionals who testify in personal injury cases.

Keywords: neurolaw, traumatic brain injury, spinal cord injury, expert witness

DOI: 10.3233/NRE-2001-16202

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 69-77, 2001

Authors: Klee, Catherine H. | Friedman, Howard J.

Article Type: Research Article

Abstract: Scientific expert witness testimony has the potential for affecting most court decisions in civil and criminal proceedings. Since experts were first utilized in English courts beginning in the 14th century, most contemporary courts struggle with seeking a balance between plaintiff and defense counsel allowing each party its day in court while taking into account the work which other courts have done previously in determining the admissibility of expert witness testimony. When these challenges present themselves in the courtroom, often other courts have approached these identical issues, many in proceedings involving the same expert(s). Confronted with these challenges, trial judges want …to understand whether a new Daubert hearing must be held, deal with the issue from a clean slate approach or whether they must reinvent the proverbial wheel. Given these dilemmas, this exposition is based within a heuristic approach that will focus on the consideration of comprehensive data inclusion from an evidentiary foundation as it applies to expert witness testimony admissibility in neurolitigation. While the evidential force of FRE 702 specifically applies to admissibility of scientific evidence, it makes sense that along with scientific, objective data, inclusion of non-medical and other data in forming and admitting expert opinions, have mutual bearing upon the validity of opinions arrived at through neuropsychological assessment. It is these multi-data that should be factored into account when applying the Federal Rule of Evidence 702 scientific admissibility standard. Data from other relevant sources is just as vital as data obtained from objective measures, and co-exists with objective data. Without the integration of this information into resulting diagnostic data and opinions, one’s methodology is open to scrutiny and can willfully be characterized as engaging in “junk science”. Specific, pragmatic issues are discussed in order to avoid the plausible “junk science” question and to ultimately arrive at a factual and evidenced-based admissibility and reliability determination for the courts. Given the current standard, this article proposes an inclusionary method in neurolitigation as it would necessarily apply to Federal Rule of Evidence 702 which would extend to the integration of data outside medical and scientific information bases to establish accurate opinions for the trier of fact. In so doing, neuropsychological test data, non-medical data and expert testimony would be strengthened through inter-data consistency. Show more

DOI: 10.3233/NRE-2001-16203

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 79-85, 2001

Authors: Mehr, Samuel H. | Gerdes, Stephen L.

Article Type: Research Article

Abstract: Courts will allow doctors to testify about the results of PET scans only if doctors provide proper legal foundation for their opinions. Doctors must document that they have used proper scientific techniques in performing the scan. They must also be prepared to explain why PET scans are scientifically reliable when used on patients with mild traumatic brain injury (TBI).

Keywords: legal foundation, reasonable medical certainty or probability, scientific reliability, PET scan, mild traumatic brain injury

DOI: 10.3233/NRE-2001-16204

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 87-92, 2001

Authors: Stern, Bruce H.

Article Type: Research Article

Abstract: Neuropsychological testing has been used in court cases all over the United States, as testimony to provide evidence of whether or not a person has a traumatic brain injury. It has, however, been scrutinized for its admissibility in court, but recognized for objectivity in successfully documenting and proving deficits in people with traumatic brain injuries. The trial court is used as a gatekeeper, and may chose to perform assessments of the tests themselves, for validity of sensitivity, specificity, reliability and validity in determining whether a neuropsychological test may be used as testimony in a court case.

DOI: 10.3233/NRE-2001-16205

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 93-101, 2001

Authors: Hyman, Harvey A.

Article Type: Research Article

Abstract: In court lay juries, not medical specialists in the rehabilitation of patients with MTBI, decide whether the plaintiff's alleged suffering and disability are real or fake, and if they resulted from cranio-cerebral trauma or from another cause for which the defendant is not responsible. This article looks at the ingrained bias of jurors against accepting that a person was brain injured if he did not suffer LOC and has a negative CT/MRI. It suggests ways of using somatic complaints causally associated with concussion in the absence of LOC or positive neuroimaging, to help MTBI patients obtain the compensation they deserve …and need for neurorehabilitation. Show more

DOI: 10.3233/NRE-2001-16206

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 103-108, 2001

Authors: Miller, Laurence

Article Type: Research Article

Abstract: When patients present with syndromes we mistrust or misunderstand, clinician are often quick to make a determination of malingering. However, the use of malingering as a default diagnosis neglects a variety of clinical possibilities that may be relevant for treatment and forensic disposition. In neuropsychology, the growing use of a malingering diagnosis has recently been fueled by the increasingly adversarial nature of forensic brain injury litigation in which the goal is often less to provide an objective evaluation of cognition and personality as to brand all personal injury claimants as manipulative frauds. Less maliciously, but still disturbing, neuropsychologists whose knowledge …base and clinical experience involves mainly the administration and scoring of psychometric tests may ignorantly, if innocently, overlook alternative diagnoses and syndromes that their education and training have ill-prepared them to recognize. And some patients do indeed malinger, and it is important to identify them, if only to spare legitimately injured claimants from being tarred with the same brush. This paper describes some of the syndromes that may present in clinical and forensic practice with brain-injured patients. It is to be considered a first step toward a practice model of neuropsychology that encourages the role of knowledge and clinical judgement in guiding the meaningful clinical interpretation of tests and measures. Show more

Keywords: malingering, traumatic brain injury (TBI), forensic neuropsychology, disability litigation

DOI: 10.3233/NRE-2001-16207

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 109-122, 2001

Authors: Friedman, Howard J. | Klee, Catherine H.

Article Type: Research Article

Abstract: Brain injury claims frequently involve the use of experts to evaluate and document extent of impairment. These experts can cover a wide array of specialities, many of which are delineated in this article. It is pointed out that there are crucial differences between a clinical evaluation and a medical-legal evaluation as the latter is generally more comprehensive and addresses many of the specific issues that arise in a forensic claim. It is suggested that use of a litigation support consultant can provide valuable assistance for the attorney at the outset and over the course of handling a claim such as …with selection of experts and preparation for direct and cross examination of experts. Suggestions are also made about criteria for selection of experts such as to ensure that appropriate objectivity, and, consequently, admissibility of conclusions is maintained. Show more

Keywords: brain injury, expert witness, medical-legal, litigation support

DOI: 10.3233/NRE-2001-16208

Citation: NeuroRehabilitation, vol. 16, no. 2, pp. 123-130, 2001