Posted on March 11, 2008 · Posted in Brain Injury

Yesterday’s blog about my frustrations with the refusal of the Wikipedia editor to add my two cents on the interaction between organic injury and emotional problems is symptomatic of a problem that is persuasive throughout neuropsychology: the insurance companies and their alter ego, the defense bar, are polluting the science of brain injury. The toxic words in this equation are malingering, conversion disorder and somatoform disorder. Huge sums of money are being funneled into what is being passed off as neuropsychological research from the insurance industry. The goal: to create peer reviewed literature that says that those with mild brain injury symptomotology are either faking their symptoms or are having an emotional reaction to what they experienced.

This topic is one worthy of several blogs. But essentially, more effort is being put into effort testing research, than almost all of the research that is going into the rest of the field brain injury. And the insurance industry has made it so profitable for neuropsychologists to work on the defense side of forensic cases, that neuropsychologists who went into the field with some sense of a calling, have convinced themselves that the doctrines of malingering, conversion disorder and malingering are real.

What does that have to do with a PTSD issue discussed in Wikipedia? It is a mild version of the same equation. The defense bar has what is correctly identified as a dog bite defense to brain injury cases. A dog bite defense is a multi-layered basis of denial, that each time something is proven, then retreat to the next defense.
You weren’t bitten by a dog; if you were, it wasn’t my dog; it you were bitten by my dog, it was your fault the dog bit you; if it was my dog’s fault you weren’t hurt.

Well in brain injury cases the dog bite defense is this:
There are no deficits, the plaintiff is normal; if there are deficits, then the plaintiff is malingering those deficits; if the plaintiff isn’t malingering, then the deficits are being caused by emotional problems, that the plaintiff had before the injury; if the plaintiff’s deficits didn’t exist before the injury, they are still just an exaggerated case of a somatoform or conversion disorder that a normal person wouldn’t have. If none of those other things don’t work, then call it PTSD (post traumatic stress disorder.)

If you work for the defense, NEVER, NEVER, NEVER, admit that the plaintiff had any permanent organic (meaning actual physical) damage or injury to the brain.

The ways in which these “research” studies are structured, they evaluate the plaintiff’s effort. They claim that their research validates that they can tell whether someone is malingering. That is just so much lying with statistics. No study can possibly tell that. It is impossible to tell what is in the mind of an individual. Neuropsychologists are not mind readers. In a court of law, they are most often not even allowed to comment on the credibility of a plaintiff. When you strip the cover off this claim, what they are really saying is that their super secret methodology (that no plaintiff could ever guess at) is telling them that a plaintiff didn’t give consistent “best effort” throughout the test.

I will blog on this particular topic more in the coming days, but such logic is incredibly flawed for a myriad of reasons. But one simple issue invalidates all effort testing claims: no person with brain damage could be expected to give consistent “best effort” over any battery of tests that last for hours and hours. Every single symptom of brain injury, makes it virtually impossible to maintain consistent effort for hours upon hours. I will later itemize how many of those symptoms effect consistent effort, but one common denominator has such a profound impact on effort that it alone makes effort testing a fraud: FATIGUE. Virtually everyone with brain damage, has fatigue. Fatigue makes you work slower, and progressively slower, the longer you are tested. Fatigue makes you make more mistakes. If you are working progressively slower and with progressively more mistakes, you will not be able to give consistent “best effort.”

Our next blog will examine these effort testing issues in more depth.

About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447