Obviously, in a personal injury setting, traumatic brain injuries can be some of the biggest damages cases. Proving a traumatic brain injury is many times a complicated matter. Often, the plaintiff may sustain a closed injury that leaves no objective abnormality that can be detected on a diagnostic study such as an MRI or CT scan. In other words, there may not a fractured skull or a bleed on the brain or other similar abnormality, yet the plaintiff and his or her loved one will complain that the plaintiff is just not the same cognitively as before the traumatic event.

Under this scenario, the plaintiffs attorney should be aware that a neuropsychologist is often the medical professional who can offer the most informed opinion on the subject.

A neuropsychologist is a subspecialist in the field of psychology with separate and distinct certifications. A neuropsychologist is not the same as a neuropsychiatrist. A neuropsychiatrist is a medical doctor with a subspecialty in neuropsychiatry, also with separate distinct certifications.

To better understand the difference between the two specialists, it is important to define neuropsychology and neuropsychiatry. Neuropsychology is the study of the structure and function of the brain as it relates to specific psychological processes and behaviors. It is seen as a clinical and experimental subcategory of psychology that aims to study, assess, understand and treat behaviors directly related to brain functioning. Neuropsychiatry is the branch of medicine dealing with mental disorders attributable to diseases of the nervous system. Obviously, there is some overlap between the two, but nonetheless, the focus of each is clearly distinguishable.

Neuropsychologists mostly focus on cognition (the ability to think, remember, learn, etc.) in relation to the effects of brain damage and organic brain disease. Neuropsychology is almost exclusively a clinical practice. This means the practice is based almost entirely on signs and symptoms in a clinical setting and based on test results from standardized laboratory testing.

As a result, from a personal injury standpoint, there is an inherent degree of subjectivity to the test results. The plaintiffs attorney needs to overcome the argument that the subjectivity can be manipulated by the medical provider. It is the job of the plaintiffs attorney to help illustrate that the test results are actually repeatable and, although they may not show up in a picture like an MRI result, they are just as real.

From a cross-examination standpoint, the plaintiffs attorney should be able to disarm any argument made by a defense neuropsychologist concerning subjectivity. Otherwise, the defense 
neuropsychologist may be undermining his or her entire practice, which is also necessarily a predominantly clinical practice.

In order to effectively cross-examine a defense medical neuropsychologist, the plaintiffs attorney must understand the neuropsychological tests administered to the plaintiff. These tests are usually administered during a four-hour session called a neuropsychological evaluation. The Cleveland Clinic website defines a neuropsychological evaluation as a formal assessment of mood, personality and cognitive abilities (e.g., memory, concentration and problem solving) conducted by a certified neuropsychologist.

The goal of the formal assessment is to measure a psychological function known to be linked to a particular brain structure or pathway. In other words, the examiner is attempting to isolate an abnormality to a particular portion of the brain. For instance, if the test results tend to show difficulty in attention or concentration, the examiner many times will conclude that the plaintiff has sustained an injury to the subcortical part of the brain.

Each neuropsychological test will have different components, which include testing intelligence, memory, language, executive function (problem solving, planning, organizational skills, selective attention, etc.), visuospatial skills, dementia (orientation to person, place and time) and a battery of psychological testing.

Obviously, just because someone scores below average on any of these tests doesn’t establish that the person was capable of scoring average or above before the accident. As a result, the plaintiffs attorney must be aware of ways of testing premorbid conditions. Premorbid refers to the state of functionality prior to the traumatic event.

For instance, with respect to intelligence, premorbid estimates can be determined through a number of methods, including the comparison of test results to expected achievement levels based on prior education and occupation and the use of something called hold tests. Hold tests are a battery of tests based on cognitive faculties that are generally good indicators of intelligence and thought to be more resistant to cognitive damage. In other words, they can test areas of brain function not thought to be at risk when someone suffers a closed head injury.

When a plaintiffs attorney represents a plaintiff whom he or she believes suffered a post-traumatic neuropyschological injury, it is imperative that the plaintiffs attorney do the research on the plaintiff’s educational background by obtaining school transcripts and the results of any other standardizing testing to help objectify the accident-related abnormalities.

Just as the name makes it sound, neuropsychological testing can be a complicated process. Nonetheless, the plaintiffs attorney can become familiar with the process in order to effectively represent the plaintiff who has sustained a neuropsychological injury. •

Brandon Swartz is a founding partner of Swartz Culleton. His practice focuses on all types of personal injury cases, including wrongful death, medical malpractice, civil rights violations, motor vehicle, premises liability, products liability, trucking accidents and workers’ compensation.