Kenneth I. Kolpan, JD (Editor)
Neuropsychological assessments are important evidence in personal injury litigation and in any other type of court action in which head-injured person is seeking compensation. The assessment may be the only objective evidence that substantiates the injured person damages and quantifies deficits in a form that lay people understand. For example, IQ is a measurable statistic that in the general population has some significance. A diminution of a individuals IQ as the result of a head injury is loss that can be compensated for. A jury that learns that a once bright, promising student has suffered a serious head injury resulting in drop in IQ of more than 15 points (a SD) can better assess this loss than the somewhat intangible deficits of loss of concentration and attention. For a jury or a judge to appreciate the consequential damages from a head injury, the neuropyschological test results should quantify the deficits in numerical terms that are easily compensable.
It is not enough to merely offer neuropsychological assessments in a courtroom and to expect that such assessments will be readily admitted. Courts in Louisiana do have liberal approaches in admitting expert testimony, including that of psychologists. The courts do require that the training and experience of the psychologist be closely scrutinized before the proffered opinions are accepted. An earlier decision accepted neuropsychological testimony but limited the testimony to exclude causation and prognosis. Courts may have difficulty accepting neuropsychological assessments because the courts are unfamiliar with neuropsychology and head injuries generally. As the specialty of neuropsychology continues to gain prominence, courts should more readily accept neuropsychological assessments as credible evidence. The Florida court in a more recent decision did hold that a psychologist's opinion could be admitted on causation, but limited it to nonphysiological effects.
As court evidence neuropsychological test results must give more than a current assessment of the injured persons functioning ability on a myriad of tests. If the test results are to have any value in litigation, the report of the results must relate the current data to comparable premorbid information. A test report that describes the head-injured person as having mild deficits in memory, concentration, and visuospatial relations may be helpful to other clinicians, but it does not aid a court or a jury in assessing damages. The report must explain how the current deficits represent a drop in the persons functioning level prior to the head injury. Unless this comparison with preaccident data is made, the neuropsychological report is of limited value to a court or a jury. Statements in a current report that purport to describe the persons current functioning level as "severely impaired," for example, are not probative of the injured persons loss as a result of the head injury.
When the current testing report compares its findings to previous test scores or educational records, and documents the change is a result of the head injury, the information represents a loss of education and/or vocational potential. An educational and/or vocational expert will then testify how the diminution in the injured person's cognitive functions has likely lost the educational and/or vocational opportunity for which that individual was probably qualified before sustaining the head injury. An economist will then describe the lost educational and/or vocational opportunity in terms of dollars and cents over the injured person's lifetime.
To make the neuropsychological assessment comparison, the neuropsychologist requires certain preaccident educational and testing materials. Since the test results are important for pending litigation, the neuropsychologist should work closely with the head-injured person's attorney to obtain the relevant records. The report will then be beneficial to the head-injured person by addressing the compensation issues that are important to that individual's future.
Courts have demonstrated increased willingness to hear expert testimony from neuropsychologists regarding head injury. Neuropsychologists who participate in litigation should recognize that their court reports and testimony should go beyond current assessments and include data documenting change in the injured persons functioning ability. Courts will increasingly look to the neuropsychologist for necessary guidance, and head-injured persons involved in litigation will benefit.