Neuropsychological pitfalls in the legal arena
Legal Pitfalls for the expert Neuropsychologist
Ajay Bhoopchand
M.B., Ch.B. (UCT) LLB (SA)
Advocate of the High Court of South Africa
Summary: The nature of dysfunction that the expert Neuropsychologist has to opine on, and that which constitutes the bulk of his work in the medico-legal setting, is rather abstract when compared to physical injury affecting other parts of the human anatomy. This lends itself to many potential pitfalls in the litigation process. This paper looks at the contribution of an expert Neuropsychologist to the medico-legal process from the point of being briefed through the whole spectrum of the process till evidence is rendered in Court. An attempt is made to identify some of the pitfalls for the expert Neuropsychologist in the process. A cursory introductory comment is made about the South African legal system. Special circumstances including the estimation of pre-morbid functioning, the handling of suspected malingering and the awareness of HIV/AIDS are considered. Some Neuropsychological disputes that have arisen in our courts are referred to.
INTRODUCTION
The abstract nature of the consequences of traumatic brain injury in particular as compared to orthopaedic injury in litigation lends the neuropsychological assessment to various pitfalls. The neuropsychological assessment can become the focal point of litigation in brain injured litigants in the absence of hard neurological signs. Some of the potential pitfalls in personal injury litigation are identified. The lens of a legal professional is applied to the medico-legal assessment and the participation of the expert Neuropsychologist through the legal process. This is not a legal opinion on the considerations of accepting a client, the extent of disclosure allowed, the requirements of consent, etc.
South Africa is a constitutional democracy. The Constitution of the Republic of South Africa, Act 108 of 1996 is the supreme legislation and all law must conform to the principles of the Constitution. The judiciary is independent. The Courts are structured along various tiers of jurisdiction ranging from the Small Claims Courts, the Magistrate’s courts and the High Courts. The Supreme Court of Appeal is the highest Court in the Republic for non constitutional issues and the Constitutional Court is the highest Court for constitutional matters. A whole system of parallel or quasi-judicial bodies regulated in the main by statute provides simpler and cheaper forums for deliberating on issues of legal conflict. They fall into the all embracing category of alternate dispute resolution.
Litigation is primarily divided into criminal and civil matters. A third category of constitutional litigation is in its infancy. The system of dispute resolution (mainstream or alternate) is an adversarial one. The parties which include the State and the accused in criminal matters and the litigant and Defendant in civil matters, challenge each other in open court. The deliberator of fact (judge, arbitrator) takes a secondary role in litigation and does not usually descend into the arena.
The expert Neuropsychologist has a role to play in both criminal and civil matters. The role of the Neuropsychologist is most pronounced in personal injury cases involving traumatic brain injuries. The Neuropsychologist in the role of the medico-legal expert has the experience and/or qualifications to assist the Court to come to a decision. When the issue is one of science the expert can be asked the very question which the Court has to decide.1This assistance is limited to issues arising in the discipline of Neuropsychology. The expert should confine his opinions to his field of expertise at every stage of the litigation process. The ambit of the expertise of Neurophysicians, Neuropsychologists, Psychologists and Psychiatrists may become blurred in the context of traumatic brain injuries and their sequelae.
THE CLINICAL VERSUS THE MEDICO-LEGAL ASSESSMENT
Material differences exist between the clinical or therapeutic practice of Neuropsychology as opposed to the medico-legal practice. In the therapeutic model, the Neuropsychologist has no reason to doubt the history provided by the patient and collateral sources. The tests are performed as investigatory tools to confirm or refute a diagnosis. The provision of treatment is invariably linked to the patient therapist contract. In the context of litigation, the background, direct and collateral information and the test results have to be scrutinised for consistency with the primary injury. An index of suspicion is an essential adjunct to the assessment. The therapist becomes the expert. Treatment is not a primary goal. The expert is ultimately responsible to the court; not to the client nor to the instructing legal professional. To unconditionally accept the information provided by the examinee is tantamount to sliding into the invariable pitfall in this regard.
To enable scrutiny of the litigation process for potential pitfalls it is convenient to divide the Neuropsychological assessment into two aspects, the technical and the substantive. Technical pitfalls relate to the duration of the consultation, the background information provided by the instructing attorney, the quality and quantity of the collateral information sought, the number and types of tests performed and the adequacy of the report formulated. Further pitfalls lurk in the nature of the instruction provided by the instructing attorney, the extent of the consideration of other expert reports and sources of information, the actual testing procedure, the language of testing and the examiner. The substantive aspects relate to the evaluation of the information and test results and the formulation of the opinion. The two aspects of the assessment are intricately linked and may provide grounds for scrutiny.
PRE- TRIAL PROCEDURES
A further distinction relates to the involvement of the expert in the pre-trial and trial stages of litigation. The pre-trial involvement commences with the expert’s interaction with the legal professionals. The consultation with the legal professional (attorney, advocate) facilitates evaluation of the expert and his report.
In addition to the recordal of the history, collateral information, the injuries sustained by the examinee, the test results and the interpretation of the test results, the report must contain the motivated opinions of the expert. The formulation of the opinion should include whether the test and /or assessment results are consistent with the injuries sustained by the examinee, the presence or absence of cognitive changes, current cognitive functioning, the severity of the primary brain injury and the severity of sequelae and secondary effects of the injury. Behavioural changes as reported and observed and the aetiological basis for the changes should be explained. Other factors that should occupy the experts mind when compiling the final report include the examinee’s pre injury functioning and any history of previous head injuries, medication history, substance usage and abuse. Failure to obtain, for example, a history of substance abuse may require revision of the expert’s opinion. When this eventuates at a late stage of the litigation process or even worse at the trial itself, it may have disastrous consequences for a meticulously constructed case concept or defence. The expert shares the responsibility with the legal professional to successfully deliver the reasoned conclusions of the expert in court. Substance abuse complicates the interpretation of the sequelae of concurrent brain injury. Where do the effects of substance abuse end and that of the brain injury begin? Can the effects of substance abuse be explained away even in the presence of hard neurological and neuropsychological signs of brain injury? How does the expert formulate his response to this dichotomy?
The case concept is developed together with strategies for counteracting the opposing views of other experts. The need for addendum reports by the expert is considered. Underpinning this requirement is the legal principle that all issues should be canvassed prior to the formal hearing of a matter and that the other side should not be taken by surprise at the trial itself. The initial report compiled by the expert may be deficient in opinions canvassed during consultation or in response to views expressed by other experts. Failure to provide comprehensive reports encompassing all opinions offends the principle of disclosure. Opinions expressed by the expert beyond the confines of the report exposes the expert to rigorous and unnecessary cross examination or threats of adjournments or postponements at the cost of the offending party to enable the offended side to seek the view of their own expert.
The report should also address whether the examinee performed with optimal effort on the tests. Reasons for this observation should be offered. The level of test performance points to pathology or to embellishment; their respective consequences and in turn the pitfalls that each exposes. The prognosis of any condition identified and the effects that the injury might have on the examinee’s employment prospects should be addressed. Injuries impacting on an examinee’s employment prospects translate into financial implications for one party. Within each of these categories of opinion, various pitfalls await the expert Neuropsychologist if he has not applied his mind to the consequences of his opinions or if his opinions differ materially from that expressed by other experts.
The information provided by the expert to the instructing legal professional and counsel in consultation has implications at the trial. The legal professional is restricted to conveying only that information in the name of the expert at the trial. If the expert denies or modifies this instruction during his testimony, the Court is entitled to draw an adverse inference from this. To the Court, the differing testimony is inferred as a change in the opinion of the expert. It is recommended that the expert good notes of his precise views expressed on relevant and material aspects of the case as is expressed in consultation with the legal professionals and transmit these views precisely during testimony.
Joint meetings between experts instructed by the opposing parties to litigation may occur in the pre-trial phase. As the number of expert Neuropsychologists is limited, they are expected to be well acquainted with one another. Joint meetings and compilation of joint reports between Neuropsychology experts carry the risk of one expert wavering under the influence of another for a variety of reasons including eminence, past teacher pupil relationship and collegiality. It is possible that one expert to be overawed by another in these proceedings. This represents a potential pitfall for the expert and has consequences for the case concept developed by the respective party.
The underlying factual information that an expert relies upon to make an opinion is often explored in the court room. The legal professional is interested in whether all the relevant information was provided to, or considered by the expert. The legal professional is responsible for transmitting all new information to his expert. The expert is expected to keep abreast of the new reports and developments in any particular case. The expert may be challenged on forming and pursuing his initial impression of the case. Confirmation bias is often suspected and explored with the expert.2
Another common pitfall occurs when a general principle relating to a particular injury is relied upon to explain what may eventuate in the examinee. The reasoning, for example, proceeds along these lines: “The examinee has a mild traumatic brain injury. Patients with mild traumatic brain injury may develop severe sequelae. The examinee is bound to or will develop severe sequelae”. By confirming the consequent logical fallacy the expert opens himself to further challenge.3 The expert is instructed to provide an opinion on a particular person and should confine his opinions to that specific person. Anecdotal accounts of outcomes contain their own pitfalls.
In the paediatric context, is serial testing at intervals negating the practice effect required? What is the time period for recovery from brain injury? Can the paediatric neuropsychologist predict outcomes of brain injury with certainty prior to full development of the growing brain? How should brain injuries in children, the potential for recovery and conversely the prospects of secondary complications like epilepsy be handled in cases initiated prematurely? Who is responsible for collating critical information relating to the brain injured child’s progress at school and collateral accounts from third parties relating to alleged behavioural changes in the child? Is every brain injured child afflicted with frontal lobe symptoms? How does the expert paediatric neuropsychologist differentiate dysfunctional behaviour from normal behaviour without recourse to the temporal relationship between the behavioural changes and the injury? Barring prescription, how does one delay the commencement of litigation on behalf of an injured child? How does one justify the delay in a deprived child? Litigation related to brain injured children pose their own set of unique pitfalls।
THE TRIAL
The true test of the opinion of an expert Neuropsychologist in the legal setting occurs in the court room when the opinions are subjected to the scrutiny of cross examination. Poor professional preparation and lack of communication between the instructing party and the expert are likely to expose the expert to numerous pitfalls during cross examination. Of the numerous pitfalls that are invariably exposed at this stage of litigation, it is fair to say that they are conceived in the preparatory stages of the process itself. Often experts baulk at participating in the legal process on the basis of previous experiences under cross examination.
Most cases settle at some stage before the scheduled trial date. This applies especially to personal injury matters. The proportions of cases that eventually make it to court are a fraction of the cases for which expert reports are commissioned. Often in the cases that proceed to trial, there are still various outcomes. A case may settle during the course of the trial as the issues become clearer or it may not be necessary to lead the evidence of some experts especially where the parties are ad idem on the issues raised or if one party admits the content of the report of the other side. Trail proceedings may also be restricted to the outstanding issues between the parties.
In the ideal situation, the expert Neuropsychologist should be present in Court when his counterpart is testifying. This applies especially to the experts appointed by the Defendant whose experts usually follow on the conclusion of the case for the Claimant. Whilst the expert is in Court, his role is to identify the contentious issues and the aspects that he finds himself in disagreement with his counterpart who is testifying. This must be communicated to trial attorney or advocate so that the latter tests the points of difference with the counterpart. The expert should ascertain that differing views are tested with the expert testifying to prevent the opposing legal professional from objecting to views that have not been tested with the expert appointed by his side.
At the actual trial itself, the legal professional may test the technical and the substantive aspects of the expert Neuropsychological assessment. The courts depend upon the expert to provide an unbiased opinion. The expert is there to assist the court in making a decision that is fair and just.
The ultimate test of assessing expert testimony in the South African legal context has been formulated. The Supreme Court of Appeal, the highest Court of appeal in non constitutional cases has defined the approach to the testimony of expert witnesses: “…it would be wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support. Only where expert opinion cannot be logically supported at all will it fail to provide the benchmark”… of consideration. The Judge is required to determine the extent to which the opinions advanced by the experts is founded on logical reasoning and how the competing sets of evidence stand in relation to one another, viewed in the light of the probabilities.4 “Where the process of reasoning or opinion is not a matter of ordinary logic, but involves, for example, the application of scientific principles, it will be necessary to set out the reasoning process.” 5 Thus the ultimate test of expert testimony at all stages of a trial is that of logical reasoning. The corollary to this is that the Court is not obliged to accept parts of or for that matter all of the evidence of an expert witness.
The trial presents various pitfalls for the expert Neuropsychologist. The major pitfall often resides in the differing opinion expressed by a fellow Neuropsychologist in Court and often on the same set of facts. Some examples of the differing opinions of Neuropsychology experts in the court room as reported in the case law are recounted to emphasise how the differences in opinion expressed by the Neuropsychology experts appointed by the opposing sides can become pitfalls for the respective experts.
There are differences of opinion regarding the specific modality that a neuropsychological test assesses.6 The Trails B test has been disputed as a test of attention and concentration. It is “rather primarily used as a test of multi-tasking and planning abilities”.7 Detailed Neuropsychological testing by one expert led to her views being accepted over that of another expert who had not tested in detail.8 Depression and its effects on test results has been argued in court. The question of whether depression is a primary condition or secondary to the primary injury has also been debated.9 The selection of an appropriate test, the norms relating to a test, the language medium used for testing, the scoring of the test performance in the appropriate age group yielded differing views from the opposing experts.10 The Wisconsin Card Sorting test came under scrutiny and its usefulness as a test for executive functioning was disputed by the opposing expert who regarded it as a test of frontal lobe functioning .11 The presence of pre-injury ADHD as opposed to ADHD secondary to trauma and the debates that have ensued between the experts as also been canvassed by opposing experts. The question of whether a brain injury is focal or diffuse in nature often embroils the opposing experts.12
The potential pitfalls relating to methodology, norms, reliability, validity, scatter, sensitivity and specificity of tests has not been explored in our courts as extensively as it is in, for example, American personal injury courts. It can be assumed that this aspect of Neuropsychological testing will arise as the legal professionals demystify Neuropsychology and when the concepts are better understood by our courts. The unique features of our population demographics have seen challenges to psychometric test interpretation and adjustment for socio-economic disadvantage. Do the tests have validity for testing across the South African population spectrum? Are the tests normed for the South African population and even more specifically are they normed for the various race groups with their very different backgrounds and life experiences. Is the adjustment for socio economic disadvantage appropriately applied to a particular individual whose background experience may differ from the stereotype? Do situational factors like depression, fatigue, usage of medication by the examinee affect the standardisation and hence the reliability of tests? I understand that as populations and circumstances change, the measures of sensitivity, reliability, specificity etc. change.13
Neuropsychology experts often refer to the three pillars of the Neuropsychological assessment, i.e. the clinical information/hospital notes, collateral information/ information reported by the Claimant and the neuropsychological assessment results. Has the Neuropsychologist done the tests themselves or has the testing been done by a third person? This issue has arisen on many an occasion in our Courts. It kindles the debate about whether an assessment is qualitatively imbued. The expert who does not perform the tests exposes herself and her instructing party to undue criticism by the expert that does. Our courts have heard that the “qualitative aspect or the behavioural component” of testing “is an integral part of the neuropsychological assessment”14
Allied to the consideration of the extent of testing is the cardinal enquiry of how the expert Neuropsychologist advances the Court’s understanding of a case. The expertise relating to the primary clinical diagnosis rests with the Neurophysicians. The Neuropsychology assessment in the context of a head injury is usually a secondary one. The expert Neuropsychologist is expected to diagnose the neuropsychological sequelae and motivate it with the tests that he performs. In the event of minimal testing or in the absence of any testing, little value can be attached to the expert’s opinion. The practice effect and reliance on the test results of another expert has been provided as a justification.
As there is as yet no official registration category of Neuropsychology with the regulating body of the profession, i.e. the Health Professions Council of South Africa, this aspect has often raised its head in the court room. No Court has as yet discounted the opinion of a psychologist who has provided testimony of a Neuropsychological nature because they are not members of a Neuropsychology group. This situation may yet change. In this respect, Neuropsychologists should limit themselves to tests approved by the HPCSA, which resides in the public domain. Neuropsychologists must assume that the legal practitioners would have access to these resources and may well question the Neuropsychologist on these aspects.
MALINGERING
The one major hurdle that often flummoxes most experts let alone Neuropsychologists is the question of whether a claimant is malingering or not. Is there malingering of symptoms or malingering of the test responses or is there both. Courts draw adverse inferences from allegations of malingering against Claimants especially when the suspicion of malingering is supported with proper Neuropsychological testing. Is the suspicion of malingering based on the inconsistency of symptom reporting or the suspicion of less than optimal responses in the test activities? Is there a rational explanation for the suspected malingering in the claimant’s brain condition e.g. a frontal lobe syndrome? Is there in like manner a differential diagnosis that may explain the inconsistent signs detected e.g. a somatoform disorder or factitious disorder? Malingering in the context of personal injury claims is often raised as a defence. The accusation of malingering made by one expert is usually countered by another expert proffering a differential diagnosis of somatoform disorder, factitious disorder or sequelae of a frontal lobe syndrome.15
For the Neuropsychologist who does not suspect malingering, be prepared to respond to questions in this regard. To the neuropsychologist who suspects malingering, likewise be prepared to be cross examined at length on this issue. An expert Neuropsychologist has indicated that “tests of malingering are usually done when there is no hard neurological evidence” of injury and has warned the Courts “not to confuse malingering with exaggeration of symptoms”. Gross malingering constitutes criminal behaviour and any suspicion of gross malingering should be well supported by the facts and findings of the expert.
HIV/AIDS
Another special case involves the increasing incidence of HIV encepahlopathies and AIDS dementia complexes. An otherwise healthy individual with cognitive, behavioural and motor changes should raise the suspicion of HIV/AIDS. Apart from being a potential pitfall in the medico-legal context, this situation calls for the suspecting Neuropsychologist to recommend referral to the appropriate clinicians for testing purposes. Furthermore, the neuropsychologist would have to be aware of the latest research in the field to adequately assess the patient and especially differentiate HIV/AIDS related brain disorders from the effects of trauma on the brain.
CONCLUSION
As a purveyor of a developing science, the expert Neuropsychologist in conjunction with the legal professional can contribute to demystifying Neuropsychology and contribute to a better understanding of the sequelae of brain injury. Together with the legal professional, the expert Neuropsychologist can anticipate the potential pitfalls in the litigation process. An informed legal professional is a powerful instrument to convey the opinion of the expert Neuropsychologist and to challenge that of the opposing expert. This is the essence of medico-legal litigation designed to eventually provide a fair and just decision for the injured litigant and the party responsible for his injuries.
Cape Town.
14 August 2007
REFERENCES
1. Ruto Flour Mills Ltd. v Adelson (I) 1958 4 SA 235 (T)
2. Fallacies and pitfalls in Psychological Assessment. Kenneth S. Pope.
3. 2 supra
4. Michael and another v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA) para 39
5. Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at 371-2
6. Bridgman NO (on behalf of H. Combi) v Road Accident Fund C&B 5 B4-1 2000 (CPD) at b4-19
7. 3 supra at B4-19
8. Dikeni v Road Accident Fund C&B 5 B4-147 2002 (CPD) at B4-158
9. Matthews v Road Accident Fund C&B 5 B4-173 2003 (CPD) at B4-183
10. Adlem v Road Accident Fund C&B 5 J2-41 2003 (CAF) at J2-47
11. 7 supra at J2-48.
12. Sibanyoni v Mutual & Federal Insurance Company Ltd. C&B 4 B2-12 1998 (SCA) at B2-13
13. Fallacies and pitfalls in Psychological Assessment. Kenneth S. Pope
14. Du Pisanie NO (obo J.G. Rabe) v De Jongh C&B 5 B4-109 2002 (CPD) at B4-119.
15. Radell v Multilateral Motor Vehicle Accident Fund C&B 4 B3-3 1993 (TPD)
16. Du Pisanie NO (obo J.G. Rabe) v De Jongh C&B 5 B4-109 2002 (CPD)
17. R v Vilbro 1957 (3) SA 223 (A)
Ajay Bhoopchand
M.B., Ch.B. (UCT) LLB (SA)
Advocate of the High Court of South Africa
Summary: The nature of dysfunction that the expert Neuropsychologist has to opine on, and that which constitutes the bulk of his work in the medico-legal setting, is rather abstract when compared to physical injury affecting other parts of the human anatomy. This lends itself to many potential pitfalls in the litigation process. This paper looks at the contribution of an expert Neuropsychologist to the medico-legal process from the point of being briefed through the whole spectrum of the process till evidence is rendered in Court. An attempt is made to identify some of the pitfalls for the expert Neuropsychologist in the process. A cursory introductory comment is made about the South African legal system. Special circumstances including the estimation of pre-morbid functioning, the handling of suspected malingering and the awareness of HIV/AIDS are considered. Some Neuropsychological disputes that have arisen in our courts are referred to.
INTRODUCTION
The abstract nature of the consequences of traumatic brain injury in particular as compared to orthopaedic injury in litigation lends the neuropsychological assessment to various pitfalls. The neuropsychological assessment can become the focal point of litigation in brain injured litigants in the absence of hard neurological signs. Some of the potential pitfalls in personal injury litigation are identified. The lens of a legal professional is applied to the medico-legal assessment and the participation of the expert Neuropsychologist through the legal process. This is not a legal opinion on the considerations of accepting a client, the extent of disclosure allowed, the requirements of consent, etc.
South Africa is a constitutional democracy. The Constitution of the Republic of South Africa, Act 108 of 1996 is the supreme legislation and all law must conform to the principles of the Constitution. The judiciary is independent. The Courts are structured along various tiers of jurisdiction ranging from the Small Claims Courts, the Magistrate’s courts and the High Courts. The Supreme Court of Appeal is the highest Court in the Republic for non constitutional issues and the Constitutional Court is the highest Court for constitutional matters. A whole system of parallel or quasi-judicial bodies regulated in the main by statute provides simpler and cheaper forums for deliberating on issues of legal conflict. They fall into the all embracing category of alternate dispute resolution.
Litigation is primarily divided into criminal and civil matters. A third category of constitutional litigation is in its infancy. The system of dispute resolution (mainstream or alternate) is an adversarial one. The parties which include the State and the accused in criminal matters and the litigant and Defendant in civil matters, challenge each other in open court. The deliberator of fact (judge, arbitrator) takes a secondary role in litigation and does not usually descend into the arena.
The expert Neuropsychologist has a role to play in both criminal and civil matters. The role of the Neuropsychologist is most pronounced in personal injury cases involving traumatic brain injuries. The Neuropsychologist in the role of the medico-legal expert has the experience and/or qualifications to assist the Court to come to a decision. When the issue is one of science the expert can be asked the very question which the Court has to decide.1This assistance is limited to issues arising in the discipline of Neuropsychology. The expert should confine his opinions to his field of expertise at every stage of the litigation process. The ambit of the expertise of Neurophysicians, Neuropsychologists, Psychologists and Psychiatrists may become blurred in the context of traumatic brain injuries and their sequelae.
THE CLINICAL VERSUS THE MEDICO-LEGAL ASSESSMENT
Material differences exist between the clinical or therapeutic practice of Neuropsychology as opposed to the medico-legal practice. In the therapeutic model, the Neuropsychologist has no reason to doubt the history provided by the patient and collateral sources. The tests are performed as investigatory tools to confirm or refute a diagnosis. The provision of treatment is invariably linked to the patient therapist contract. In the context of litigation, the background, direct and collateral information and the test results have to be scrutinised for consistency with the primary injury. An index of suspicion is an essential adjunct to the assessment. The therapist becomes the expert. Treatment is not a primary goal. The expert is ultimately responsible to the court; not to the client nor to the instructing legal professional. To unconditionally accept the information provided by the examinee is tantamount to sliding into the invariable pitfall in this regard.
To enable scrutiny of the litigation process for potential pitfalls it is convenient to divide the Neuropsychological assessment into two aspects, the technical and the substantive. Technical pitfalls relate to the duration of the consultation, the background information provided by the instructing attorney, the quality and quantity of the collateral information sought, the number and types of tests performed and the adequacy of the report formulated. Further pitfalls lurk in the nature of the instruction provided by the instructing attorney, the extent of the consideration of other expert reports and sources of information, the actual testing procedure, the language of testing and the examiner. The substantive aspects relate to the evaluation of the information and test results and the formulation of the opinion. The two aspects of the assessment are intricately linked and may provide grounds for scrutiny.
PRE- TRIAL PROCEDURES
A further distinction relates to the involvement of the expert in the pre-trial and trial stages of litigation. The pre-trial involvement commences with the expert’s interaction with the legal professionals. The consultation with the legal professional (attorney, advocate) facilitates evaluation of the expert and his report.
In addition to the recordal of the history, collateral information, the injuries sustained by the examinee, the test results and the interpretation of the test results, the report must contain the motivated opinions of the expert. The formulation of the opinion should include whether the test and /or assessment results are consistent with the injuries sustained by the examinee, the presence or absence of cognitive changes, current cognitive functioning, the severity of the primary brain injury and the severity of sequelae and secondary effects of the injury. Behavioural changes as reported and observed and the aetiological basis for the changes should be explained. Other factors that should occupy the experts mind when compiling the final report include the examinee’s pre injury functioning and any history of previous head injuries, medication history, substance usage and abuse. Failure to obtain, for example, a history of substance abuse may require revision of the expert’s opinion. When this eventuates at a late stage of the litigation process or even worse at the trial itself, it may have disastrous consequences for a meticulously constructed case concept or defence. The expert shares the responsibility with the legal professional to successfully deliver the reasoned conclusions of the expert in court. Substance abuse complicates the interpretation of the sequelae of concurrent brain injury. Where do the effects of substance abuse end and that of the brain injury begin? Can the effects of substance abuse be explained away even in the presence of hard neurological and neuropsychological signs of brain injury? How does the expert formulate his response to this dichotomy?
The case concept is developed together with strategies for counteracting the opposing views of other experts. The need for addendum reports by the expert is considered. Underpinning this requirement is the legal principle that all issues should be canvassed prior to the formal hearing of a matter and that the other side should not be taken by surprise at the trial itself. The initial report compiled by the expert may be deficient in opinions canvassed during consultation or in response to views expressed by other experts. Failure to provide comprehensive reports encompassing all opinions offends the principle of disclosure. Opinions expressed by the expert beyond the confines of the report exposes the expert to rigorous and unnecessary cross examination or threats of adjournments or postponements at the cost of the offending party to enable the offended side to seek the view of their own expert.
The report should also address whether the examinee performed with optimal effort on the tests. Reasons for this observation should be offered. The level of test performance points to pathology or to embellishment; their respective consequences and in turn the pitfalls that each exposes. The prognosis of any condition identified and the effects that the injury might have on the examinee’s employment prospects should be addressed. Injuries impacting on an examinee’s employment prospects translate into financial implications for one party. Within each of these categories of opinion, various pitfalls await the expert Neuropsychologist if he has not applied his mind to the consequences of his opinions or if his opinions differ materially from that expressed by other experts.
The information provided by the expert to the instructing legal professional and counsel in consultation has implications at the trial. The legal professional is restricted to conveying only that information in the name of the expert at the trial. If the expert denies or modifies this instruction during his testimony, the Court is entitled to draw an adverse inference from this. To the Court, the differing testimony is inferred as a change in the opinion of the expert. It is recommended that the expert good notes of his precise views expressed on relevant and material aspects of the case as is expressed in consultation with the legal professionals and transmit these views precisely during testimony.
Joint meetings between experts instructed by the opposing parties to litigation may occur in the pre-trial phase. As the number of expert Neuropsychologists is limited, they are expected to be well acquainted with one another. Joint meetings and compilation of joint reports between Neuropsychology experts carry the risk of one expert wavering under the influence of another for a variety of reasons including eminence, past teacher pupil relationship and collegiality. It is possible that one expert to be overawed by another in these proceedings. This represents a potential pitfall for the expert and has consequences for the case concept developed by the respective party.
The underlying factual information that an expert relies upon to make an opinion is often explored in the court room. The legal professional is interested in whether all the relevant information was provided to, or considered by the expert. The legal professional is responsible for transmitting all new information to his expert. The expert is expected to keep abreast of the new reports and developments in any particular case. The expert may be challenged on forming and pursuing his initial impression of the case. Confirmation bias is often suspected and explored with the expert.2
Another common pitfall occurs when a general principle relating to a particular injury is relied upon to explain what may eventuate in the examinee. The reasoning, for example, proceeds along these lines: “The examinee has a mild traumatic brain injury. Patients with mild traumatic brain injury may develop severe sequelae. The examinee is bound to or will develop severe sequelae”. By confirming the consequent logical fallacy the expert opens himself to further challenge.3 The expert is instructed to provide an opinion on a particular person and should confine his opinions to that specific person. Anecdotal accounts of outcomes contain their own pitfalls.
In the paediatric context, is serial testing at intervals negating the practice effect required? What is the time period for recovery from brain injury? Can the paediatric neuropsychologist predict outcomes of brain injury with certainty prior to full development of the growing brain? How should brain injuries in children, the potential for recovery and conversely the prospects of secondary complications like epilepsy be handled in cases initiated prematurely? Who is responsible for collating critical information relating to the brain injured child’s progress at school and collateral accounts from third parties relating to alleged behavioural changes in the child? Is every brain injured child afflicted with frontal lobe symptoms? How does the expert paediatric neuropsychologist differentiate dysfunctional behaviour from normal behaviour without recourse to the temporal relationship between the behavioural changes and the injury? Barring prescription, how does one delay the commencement of litigation on behalf of an injured child? How does one justify the delay in a deprived child? Litigation related to brain injured children pose their own set of unique pitfalls।
THE TRIAL
The true test of the opinion of an expert Neuropsychologist in the legal setting occurs in the court room when the opinions are subjected to the scrutiny of cross examination. Poor professional preparation and lack of communication between the instructing party and the expert are likely to expose the expert to numerous pitfalls during cross examination. Of the numerous pitfalls that are invariably exposed at this stage of litigation, it is fair to say that they are conceived in the preparatory stages of the process itself. Often experts baulk at participating in the legal process on the basis of previous experiences under cross examination.
Most cases settle at some stage before the scheduled trial date. This applies especially to personal injury matters. The proportions of cases that eventually make it to court are a fraction of the cases for which expert reports are commissioned. Often in the cases that proceed to trial, there are still various outcomes. A case may settle during the course of the trial as the issues become clearer or it may not be necessary to lead the evidence of some experts especially where the parties are ad idem on the issues raised or if one party admits the content of the report of the other side. Trail proceedings may also be restricted to the outstanding issues between the parties.
In the ideal situation, the expert Neuropsychologist should be present in Court when his counterpart is testifying. This applies especially to the experts appointed by the Defendant whose experts usually follow on the conclusion of the case for the Claimant. Whilst the expert is in Court, his role is to identify the contentious issues and the aspects that he finds himself in disagreement with his counterpart who is testifying. This must be communicated to trial attorney or advocate so that the latter tests the points of difference with the counterpart. The expert should ascertain that differing views are tested with the expert testifying to prevent the opposing legal professional from objecting to views that have not been tested with the expert appointed by his side.
At the actual trial itself, the legal professional may test the technical and the substantive aspects of the expert Neuropsychological assessment. The courts depend upon the expert to provide an unbiased opinion. The expert is there to assist the court in making a decision that is fair and just.
The ultimate test of assessing expert testimony in the South African legal context has been formulated. The Supreme Court of Appeal, the highest Court of appeal in non constitutional cases has defined the approach to the testimony of expert witnesses: “…it would be wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support. Only where expert opinion cannot be logically supported at all will it fail to provide the benchmark”… of consideration. The Judge is required to determine the extent to which the opinions advanced by the experts is founded on logical reasoning and how the competing sets of evidence stand in relation to one another, viewed in the light of the probabilities.4 “Where the process of reasoning or opinion is not a matter of ordinary logic, but involves, for example, the application of scientific principles, it will be necessary to set out the reasoning process.” 5 Thus the ultimate test of expert testimony at all stages of a trial is that of logical reasoning. The corollary to this is that the Court is not obliged to accept parts of or for that matter all of the evidence of an expert witness.
The trial presents various pitfalls for the expert Neuropsychologist. The major pitfall often resides in the differing opinion expressed by a fellow Neuropsychologist in Court and often on the same set of facts. Some examples of the differing opinions of Neuropsychology experts in the court room as reported in the case law are recounted to emphasise how the differences in opinion expressed by the Neuropsychology experts appointed by the opposing sides can become pitfalls for the respective experts.
There are differences of opinion regarding the specific modality that a neuropsychological test assesses.6 The Trails B test has been disputed as a test of attention and concentration. It is “rather primarily used as a test of multi-tasking and planning abilities”.7 Detailed Neuropsychological testing by one expert led to her views being accepted over that of another expert who had not tested in detail.8 Depression and its effects on test results has been argued in court. The question of whether depression is a primary condition or secondary to the primary injury has also been debated.9 The selection of an appropriate test, the norms relating to a test, the language medium used for testing, the scoring of the test performance in the appropriate age group yielded differing views from the opposing experts.10 The Wisconsin Card Sorting test came under scrutiny and its usefulness as a test for executive functioning was disputed by the opposing expert who regarded it as a test of frontal lobe functioning .11 The presence of pre-injury ADHD as opposed to ADHD secondary to trauma and the debates that have ensued between the experts as also been canvassed by opposing experts. The question of whether a brain injury is focal or diffuse in nature often embroils the opposing experts.12
The potential pitfalls relating to methodology, norms, reliability, validity, scatter, sensitivity and specificity of tests has not been explored in our courts as extensively as it is in, for example, American personal injury courts. It can be assumed that this aspect of Neuropsychological testing will arise as the legal professionals demystify Neuropsychology and when the concepts are better understood by our courts. The unique features of our population demographics have seen challenges to psychometric test interpretation and adjustment for socio-economic disadvantage. Do the tests have validity for testing across the South African population spectrum? Are the tests normed for the South African population and even more specifically are they normed for the various race groups with their very different backgrounds and life experiences. Is the adjustment for socio economic disadvantage appropriately applied to a particular individual whose background experience may differ from the stereotype? Do situational factors like depression, fatigue, usage of medication by the examinee affect the standardisation and hence the reliability of tests? I understand that as populations and circumstances change, the measures of sensitivity, reliability, specificity etc. change.13
Neuropsychology experts often refer to the three pillars of the Neuropsychological assessment, i.e. the clinical information/hospital notes, collateral information/ information reported by the Claimant and the neuropsychological assessment results. Has the Neuropsychologist done the tests themselves or has the testing been done by a third person? This issue has arisen on many an occasion in our Courts. It kindles the debate about whether an assessment is qualitatively imbued. The expert who does not perform the tests exposes herself and her instructing party to undue criticism by the expert that does. Our courts have heard that the “qualitative aspect or the behavioural component” of testing “is an integral part of the neuropsychological assessment”14
Allied to the consideration of the extent of testing is the cardinal enquiry of how the expert Neuropsychologist advances the Court’s understanding of a case. The expertise relating to the primary clinical diagnosis rests with the Neurophysicians. The Neuropsychology assessment in the context of a head injury is usually a secondary one. The expert Neuropsychologist is expected to diagnose the neuropsychological sequelae and motivate it with the tests that he performs. In the event of minimal testing or in the absence of any testing, little value can be attached to the expert’s opinion. The practice effect and reliance on the test results of another expert has been provided as a justification.
As there is as yet no official registration category of Neuropsychology with the regulating body of the profession, i.e. the Health Professions Council of South Africa, this aspect has often raised its head in the court room. No Court has as yet discounted the opinion of a psychologist who has provided testimony of a Neuropsychological nature because they are not members of a Neuropsychology group. This situation may yet change. In this respect, Neuropsychologists should limit themselves to tests approved by the HPCSA, which resides in the public domain. Neuropsychologists must assume that the legal practitioners would have access to these resources and may well question the Neuropsychologist on these aspects.
MALINGERING
The one major hurdle that often flummoxes most experts let alone Neuropsychologists is the question of whether a claimant is malingering or not. Is there malingering of symptoms or malingering of the test responses or is there both. Courts draw adverse inferences from allegations of malingering against Claimants especially when the suspicion of malingering is supported with proper Neuropsychological testing. Is the suspicion of malingering based on the inconsistency of symptom reporting or the suspicion of less than optimal responses in the test activities? Is there a rational explanation for the suspected malingering in the claimant’s brain condition e.g. a frontal lobe syndrome? Is there in like manner a differential diagnosis that may explain the inconsistent signs detected e.g. a somatoform disorder or factitious disorder? Malingering in the context of personal injury claims is often raised as a defence. The accusation of malingering made by one expert is usually countered by another expert proffering a differential diagnosis of somatoform disorder, factitious disorder or sequelae of a frontal lobe syndrome.15
For the Neuropsychologist who does not suspect malingering, be prepared to respond to questions in this regard. To the neuropsychologist who suspects malingering, likewise be prepared to be cross examined at length on this issue. An expert Neuropsychologist has indicated that “tests of malingering are usually done when there is no hard neurological evidence” of injury and has warned the Courts “not to confuse malingering with exaggeration of symptoms”. Gross malingering constitutes criminal behaviour and any suspicion of gross malingering should be well supported by the facts and findings of the expert.
HIV/AIDS
Another special case involves the increasing incidence of HIV encepahlopathies and AIDS dementia complexes. An otherwise healthy individual with cognitive, behavioural and motor changes should raise the suspicion of HIV/AIDS. Apart from being a potential pitfall in the medico-legal context, this situation calls for the suspecting Neuropsychologist to recommend referral to the appropriate clinicians for testing purposes. Furthermore, the neuropsychologist would have to be aware of the latest research in the field to adequately assess the patient and especially differentiate HIV/AIDS related brain disorders from the effects of trauma on the brain.
CONCLUSION
As a purveyor of a developing science, the expert Neuropsychologist in conjunction with the legal professional can contribute to demystifying Neuropsychology and contribute to a better understanding of the sequelae of brain injury. Together with the legal professional, the expert Neuropsychologist can anticipate the potential pitfalls in the litigation process. An informed legal professional is a powerful instrument to convey the opinion of the expert Neuropsychologist and to challenge that of the opposing expert. This is the essence of medico-legal litigation designed to eventually provide a fair and just decision for the injured litigant and the party responsible for his injuries.
Cape Town.
14 August 2007
REFERENCES
1. Ruto Flour Mills Ltd. v Adelson (I) 1958 4 SA 235 (T)
2. Fallacies and pitfalls in Psychological Assessment. Kenneth S. Pope.
3. 2 supra
4. Michael and another v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA) para 39
5. Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft fur Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at 371-2
6. Bridgman NO (on behalf of H. Combi) v Road Accident Fund C&B 5 B4-1 2000 (CPD) at b4-19
7. 3 supra at B4-19
8. Dikeni v Road Accident Fund C&B 5 B4-147 2002 (CPD) at B4-158
9. Matthews v Road Accident Fund C&B 5 B4-173 2003 (CPD) at B4-183
10. Adlem v Road Accident Fund C&B 5 J2-41 2003 (CAF) at J2-47
11. 7 supra at J2-48.
12. Sibanyoni v Mutual & Federal Insurance Company Ltd. C&B 4 B2-12 1998 (SCA) at B2-13
13. Fallacies and pitfalls in Psychological Assessment. Kenneth S. Pope
14. Du Pisanie NO (obo J.G. Rabe) v De Jongh C&B 5 B4-109 2002 (CPD) at B4-119.
15. Radell v Multilateral Motor Vehicle Accident Fund C&B 4 B3-3 1993 (TPD)
16. Du Pisanie NO (obo J.G. Rabe) v De Jongh C&B 5 B4-109 2002 (CPD)
17. R v Vilbro 1957 (3) SA 223 (A)
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