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Don’t Play Head Games

A look at third-party observations of neuropsychological examinations

October 09, 2020 Photo

During the last several years, head-trauma claims have become prevalent in personal injury lawsuits. Common complaints include issues related to memory, behavior, and the ability to perform daily life activities. In order to evaluate these claims, defense counsel often rely on neuropsychological examinations.

In response, plaintiffs’ attorneys often request to observe or record these examinations, apparently out of fear that their clients will be unfairly questioned about liability issues, or that the examination will not be accurately administered. Given these concerns and the need for the examination to accurately portray the plaintiff’s condition, the question becomes: Is a request to attend or record a neuropsychological examination appropriate?

Neuropsychological Examinations

The neuropsychological examination is a comprehensive assessment—performed by a neuropsychologist—of an individual’s functioning in many areas, including communication, visual-spatial ability, problem solving, memory, attention, social skills, and emotional status. The assessment of these functions is based on information obtained through the individual’s history, clinical observation, and testing results. The purpose of the exam is to provide a deeper knowledge of the individual’s inherent strengths and weaknesses to better understand the challenges that may interfere with academic, social, emotional, and/or vocational functioning.

Once the exam is complete, recommendations can be made for direct interventions and support to assist the plaintiff in achieving his full potential. For example, if a plaintiff is claiming he can no longer work as a result of an alleged head trauma, then the neuropsychological examination will determine the individual’s limitations, if any, as they relate to the ability to perform or function at work. Clearly, such an assessment is tremendously useful in analyzing a plaintiff’s claim and identifying a strategy for resolution.

Validity testing—a critical part of any neuropsychological examination—measures the effort put forth by the patient during the neuropsychological evaluation. This testing can be embedded within the examination or determined by the neuropsychologist through standalone testing. If a patient fails the validity-testing portion of the exam, then the results from the remainder of the exam are invalid and unreliable. Accordingly, it is essential that a patient put forth his best effort while participating in the exam, free from distraction.

The Effects of Observers

Over the last couple of decades, clinical neuropsychology has studied the effects of third-party observers, including audio and video recording, on neuropsychological test performance. Multiple studies have found that this observation impairs performance on effort testing and on learning and memory testing. Many of these studies have shown that the presence of a third party negatively affects the performance of the individual being tested. [See, for example, “Mere Presence Effects in Humans: A Review.” Journal of Experimental Social Psychology, Guerin, B. (1986)]. These findings are related to what psychologists refer to as “social facilitation” or “reactivity,” which is generally defined as the tendency of a person to show enhanced performance on simple tasks, but inhibited performance on complex tasks in the presence of observers.

Just like the studies related to third-party observation, it was found that audio recording adversely affected individual test performance in four subtests and was in accordance with the social facilitation theory. [See “When Third Party Observer of a Neuropsychological Evaluation is an Audio-Recorder.” The Clinical Neuropsychologist, Constantinou, M., et al. (2002)]. A later study revealed that the presence of a video camera negatively impacted memory test scores; specifically, measures of immediate recall and delayed recall.

Neuropsychology Community Weighs In

The studies demonstrating significant effects have led to the assertion by many neuropsychologists and neuropsychological associations that third-party observations, including audio and video recordings of neuropsychological examinations, violates standardized testing procedures; jeopardizes test security; renders interpretation of norms less valid; and may be a breach of ethics and standards. Given these issues, and the importance of a patient putting forth his best effort and being free from distraction during a neuropsychological examination, the National Academy of Neuropsychology’s (NAN) official position is that neuropsychologists “should strive to minimize all influences that may compromise accuracy of assessment and should make every effort to exclude observers from the evaluation.”

The American Psychological Association (APA), the American Educational Research Association, and the National Council on Measurement in Education offered direction in the Standards for Educational and Psychological Tests that testing should be conducted without distraction. Further, the APA’s “Ethical Principles of Psychologists and Code of Conduct” (1992) set forth requirements for standardized testing that would be contradicted by the presence of a third-party observer, as it would potentially generate distraction and/or interruption of the examination.

The neuropsychological community is clear and adamant that a third-party observer, including audio and video recording, should not be allowed during a neuropsychological evaluation, and there is plenty of data to support this position. So how can an attorney ensure his client is not being asked unfavorable questions, and that the test is being administered properly? The answer is simple, and it is common practice among neuropsychologists: At the request of the attorney, the neuropsychologist is required to produce all of the raw data from the exam to another licensed neuropsychologist for review and assessment.

Logically speaking, this process makes much more sense than to allow an attorney to watch, listen, or review a video of the evaluation. Attorneys are not neuropsychologists and have no experience or expertise to evaluate the administration of a neuropsychological exam. If an attorney desires to properly cross-examine a neuropsychologist, he should retain one to consult and provide insight on the evaluation results.

The purpose of a plaintiff submitting to a neuropsychological exam is for both parties to determine the client’s limitations, if any. The findings and opinions allow both parties to evaluate the claims being made by the plaintiff so that the parties can work toward a reasonable resolution. Accordingly, it would benefit both parties to have a neuropsychological evaluation performed with the fewest distractions possible, meaning direct or indirect third-party observation should not be permitted. 

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About The Authors
Christopher Antoci

Christopher Antoci is an attorney at Swift, Currie, McGhee & Hiers, LLP. christopher. antoci@swiftcurrie.com

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