ACCESSING THE DEFENSE NEUROPSYCHOLOGIST"S RAW TEST DATA SCORES: THE WHY AND HOW  [ back to List of Articles ]
Harvey A. Hyman, Esq.

When you file a personal injury suit for your client with a TBI, you can be sure defense will retain a neuropsychologist to "assess" her. This will never be a neutral, bias-free exercise, because the defense is paying the examiner to find "warts" that will soil your client's credibility and devalue her claims. The defense "expert" may use a barbed, excessively critical appraisal of your client's character, her life choices, how she behaved during the interview and even how she dressed for it. He might simply choose to treat all her current difficulties as nonexistent. For instance, let's say your client was a relatively happy person with stable, loving marital and family relationships, who was successful in the advertising business because she was an effective communicator; but now, on account of her TBI, she speaks in a slow, halting and less articulate fashion due to word finding difficulties, she fears social contact and suffers from repeated bouts of depression, irritability and crying fits. The defense neuropsychologist will handle this by observing in his report that plaintiff was a pleasant, relaxed lady who spoke fluently, expressively and at normal speed, and exhibited no distress whatsoever. He does not see the pink elephant in the room.

Whatever the defense thesis is, rest assured that its chosen neuropsychologist will support it when interpreting the scores on your client's cognitive test results and MMPI II profile. If you assert your client has MTBI, you will generally get a report saying there was no concussion or only a very slight, questionable concussion which resolved long ago, if it ever occurred, and the testing evidences no organic brain dysfunction, just psycho-pathology of a long standing nature that pre-existed the traumatic incident, such as borderline personality disorder or conversion disorder. How do you impeach a defense neuropsychologist who ignores all evidence consistent with a TBI and who simply rubber stamps the defense attorney's view that your client is feigning or exaggerating?

Some jurors are simply not troubled by the fact he got a fat fee, that he always works for the defense or that he just does forensic work rather than treating real patients. However, virtually every juror will be troubled by proof that the defense neuropsychologist made serious departures from professional standards in administering the test, scoring it, norming the scores or applying the proper correction factors. It is not your job to detect these errors. Rather, you must get their neuropsychologist's raw test results, test scores, and interpretive materials to your expert in neuropsychology to examine under the proverbial microscope. If the defense neuropsychologist is one of those exceedingly rare "straight shooters," such a review will show an acceptable consistency between conclusions in the report and the data; but where the defense neuropsychologist is defense-friendly (the vast majority of the time), such a review should flush out blatant conflicts between the conclusions of the report and the underlying data.

Most jurisdictions require the defense to give plaintiff's counsel the IME report written by its neuropsychologist. In California, the defense cannot skirt this requirement by asking its neuropsychologist to provide only a "verbal" report. Pursuant to Code of Civil Procedure Section 2032(h) plaintiff's counsel can force the defense neuropsychologist to write a report summarizing his findings, diagnoses, prognoses, and supporting data, by demanding he submit a report after the exam. If the defense ignores such a request, plaintiff can make a motion to compel their neuropsychologist to provide a report. Kennedy v. Superior Court (1998) 64 Cal.App.4th 674. The APA places an ethical obligation on psychologists doing forensic work to make and keep written records, and then to disclose them according to law. See, Sections 1.23, 1.24 and 5.05 of the APA's Ethical Principles of Psychologists and Code of Conduct. Even if the defense does not like his report, and refuses to pay for it, non-payment of his bill does not justify withholding the report from the patient (APA code Section 5.11). The only downside to a statutory request for an IME's report, at least in California, is that it triggers the obligation to swap reports on the same topic.

Getting the defense IME report is not enough, because it is a highly edited, highly selective summary of only those "facts" which support its theses. Bits of clinical history and test results which tend to prove the plaintiff's case are typically ignored, glossed over or downplayed to the extreme. To pierce such a report, you must access the defense neuropsychologist's notes, raw test data and test scores. You also need to ask your client how, where and under what circumstances the tests were administered. I know of one case where the defense neuropsychologist had the plaintiff complete the tests during her lunch at a McDonald's. Two months ago, my client told me the defense expert made her fill out the tests on the dashboard of his Mercedes in the parking lot, because he kept no writing desk for her use in his office. Needless to say, those test conditions invalidate the results, and give the jurors a window into the character of the defense expert.

When you ask for the defense neuropsychologist's raw test data and scores, you will typically be told "No." The defense position is usually that this is "just part of discovery, it's only an IME, and we have not disclosed Dr. X as our expert for trial, so his data is protected as work product." Is that position correct, and will it stand up in court, if you make a motion to compel in Court? No. The defense automatically waives its work product privilege by statute with respect to a mental or physical exam of the plaintiff in many jurisdictions. See California Code of Civil Procedure Section 2032(h); Jorgensen v. Superior Court of Sonoma County (1958) 163 Cal.App.2d 513.

Furthermore, it is your client and not the defense expert who is the legal "owner" of her patient records, and she has the legal right to inspect and copy them. These rights are enshrined in the Freedom of Information Act and HHS regulations. See 5 USC 552, 45 CFR 5 and 65 Federal Register 82462. Make no mistake that the records of a defense psychologist constitute a patient record. Once he takes information from your client for the purpose of a health history, diagnosis, prognosis or evaluation of her condition, he has created a patient record. In California this is explicitly recognized in Health & Safety Code Section 25251(d). The fact that the patient record is created in the context of litigation does not dilute or negate your client's ownership or her right to inspect and copy them. In California this is set forth in Section 1158 of the Evidence Code.

The next argument typically raised by the defense is that the APA imposes on all licensed psychologists the duty to maintain the secrecy of test instruments and the confidentiality of patient records. However, the APA also mandates that every licensed pathologist who assesses the condition of a plaintiff in litigation must turn over his test data and report to any other licensed mental health professional trained in psychological assessment, and who has received an authorization from the patient to receive the records. See Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2nd ed.) by Gary B. Melton et al. (Guilford Press, New York) at page 112.

The APA procedure thus involves indirect transmission of the defense expert's raw test date and scores. It does not go from him to plaintiff's counsel. It goes from him to plaintiff's retained expert in neuropsychology. This enables the defense expert to avoid breaching his obligation to preserve the security of test instruments. Can the defense materials go to plaintiff's treating neuropsychologist? I have seen this done. However, I have been advised by the experts I use not to do it. They tell me that APA's current position is that these records should not be sent to your client's treating neuropsychologist for forensic analysis, because this would place him in a "dual role." Your client's treating neuropsychologist has a duty to do nothing harmful to his patient. Receiving and reviewing forensic data acquired by the defense and discussing it with his patient could harm the patient. It also puts the treater in the tough position of having to set aside all loyalty to his patient and to aspire to be a completely neutral expert, while seeking to maintain a private relationship of trust and confidence with his patient. Obviously this could damage the therapeutic relationship, and open the treater to charges of bias on cross-examination. Complying with the procedure should not be a problem. Your expert in neuropsychology should know exactly how to analyze the raw test data and scores produced to him by the defense, and to zero in on the discrepancies between the data and the conclusions in the report. This leaves the treater's relationship with his patient intact, except that he can be forced to testify to "facts" observed in the course of treatment as would any treater. You get the full benefit of your expert's analysis for use in cross-examination of the defense examiner.

By making use of the authorities and arguments discussed above, I have been successful repeatedly in accessing the test data and test scores relied on by the defense neuropsychologist to justify the heavily biased conclusions in his report. There is no reason to let him control the call. His conclusions are only as good as his data. When two sides argue over whose conclusions are more reasonable in the abstract, the jury can split. However, when my expert can show the defense neuropsychologist administered, scored or interpreted the tests in erroneous fashion, the defense expert is impeached, and the superficial reasonableness of his conclusions is forgotten.