Attorney: “I understand that you tested my client several months ago when she had carbon monoxide poisoning. I see that your report indicated that Maddy suffered from cognitive and emotional symptoms. My law firm is representing Maddy for brain damage and emotional distress. I would like you to evaluate her again. Are you available to testify for us?”
Dr. Schiltz: “Thank you for your call and sending me a release from Maddy’s parents so we can talk. As you know, the neurologist and hyperbaric physician referred this child to me when she was released from hyperbaric treatment. She was initially reporting flu-like symptoms, nausea, marked anxiety, and fear in the hospital. I then assessed Maddy for clinical neuropsychological purposes on an outpatient basis as referred by the neurologist and hyperbaric physician in order to assess her overall strengths and weaknesses, identify possible interventions, and help the family with educational planning if needed. I will not be able to assess Maddy forensically at this time because I was a “treater” when I assessed her. However, I would like to refer you to a colleague of mine who would be able to talk with you as a potential expert. I can certainly testify as a “treater” as to what the test results indicated when I saw her.”
This scenario is common in my office. I often assess patients with head injury, carbon monoxide poisoning, autism, psychiatric conditions, and learning disabilities for clinical purposes. At that point my role is cast as a “treater.” Attorneys and educational advocates may subsequently ask me, a “treater,” to conduct an additional assessment for forensic purposes. The questions that are asked clinically are oftentimes markedly different to the questions that are raised in the forensic context. This scenario raises potential ethical, clinical, and legal problems for the treating clinical neuropsychologist and, furthermore, can jeopardize their relationship not only with the patient but also with the attorney.
Neuropsychologists working in a clinical pediatric/young adult context assess “patients/students/clients” that are referred by pediatricians, neurologists, psychiatrists, educators, psychologists, and other healthcare providers. These assessments are requested to “help” a patient who is suspected of, or is already experiencing problems. The final product of these assessments is a “roadmap” specifying options for clinical and educational interventions. These evaluations are oftentimes a medical necessity. The pediatric/young adult clinical assessment evaluates areas such as intellect, language, attention and concentration, memory, motor, executive skills (initiation, planning/organizational, emotional regulation, organization of materials, time management, self/task-monitoring skills), achievement, social-emotional, social communication, adaptive, and motivational (effort) levels. Interviews and rating scales completed by the parents and significant others such as teachers are necessary in order to gather information regarding the child’s potential problems in everyday life in the classroom and home environments. In addition, the neuropsychologist will review relevant background information such as educational, medical, and psychiatric records. With this systematic approach, the clinical neuropsychologist evaluates the nature of possible clinical disorders and co-existing problems (comorbid conditions). This information provides the impetus for efficient remediation planning.
An attorney retains a neuropsychologist for legal purposes and not for medical purposes because of the nature of the case. The questions that are asked in a forensic assessment are based on an expert’s objectivity when assessing the “evaluee.” The expert conducts the testing and reviews ALL records. Interviews with the parents and significant others such as teachers, who are not involved in the legal proceedings, are conducted. As with the clinical assessment, rating scales designed to assess behavior and social-emotional factors are administered to the parents and teachers. This process is necessary because the expert needs to assess the evaluee’s motivation across time and understand the “true” impact of the “evaluee’s” potential difficulties in everyday life. This type of assessment must reflect an impartial opinion regarding the nature of the alleged injury, i.e., legal causation, and factors potentially negatively affecting the evaluee’s presentation such as suboptimal effort, medication, pain, stressors, preexisting learning disabilities and attentional problems. In addition, prognosis related to the conditions is discussed. Unlike the clinical case, the neuropsychologist, as an expert, will also typically be asked to review deposition transcripts. A doctor-patient relationship does not exist in the referral from an attorney. A forensic neuropsychological assessment is not a medical necessity and it is specifically performed to answer the retaining attorney’s questions.
A neuropsychologist must understand the specific referral questions in order to prevent any miscommunication with the attorney. Neuropsychologists who assess as both a “treater” and “expert” need to be aware of the land mines that they may encounter in deposition, trial, and in clinical care situations. Accepting the dual role of patient advocate and dispassionate forensic examiner can backfire on the neuropsychologist and the retaining attorney. The neuropsychologist might be subject to ethical, legal, and malpractice complications. Furthermore, the attorney may find the expert’s opinion rendered useless or tainted. Neuropsychologists should strive to maintain the highest standards of professional practice when performing clinical and forensic-oriented assessments.
By Expert ID: 06087, PhD
Associate Clinical Professor (Voluntary)
Medical Psychology Assessment Center
Semel Institute for Neuroscience and Human Behavior
Department of Psychiatry and Biobehavioral Sciences
David Geffen School of Medicine at UCLA