Test Security in Medico-Legal Cases: Proposed guidelines for attorneys utilizing neuropsychology practice
I read with interest an current article entitled “Test Security in Medico-Legal Cases: Proposed guidelines for attorneys utilizing neuropsychology practice” published in the November 2009 issue of the Archives of Clinical Neuropsychology. The author is Kenneth R. Morel, Ph.D.
The article discusses the unethical practice of attorneys preparing their clients in advance for a neuropsychological examination and recommends guidelines for attorneys.
In that article, the author includes two tables, the first discusses the “appropriate attorney preparation of a client for a neuropsychological examination” and second “examples of attorney preparation of a client that may reduce the validity of the neuropsychological examination and raise ethical questions.” First let me say that I have no objection to either of the tables with the exception that it is not the plaintiffs’ obligation “to bring with them all relevant medical records, etc.” Rather, it is the obligation of the attorney who retained the neuropsychologist to provide the neuropsychologist with these materials.
Taking a step back, I do question the initial assumption that plaintiff attorneys routinely coach their clients. While it would not surprise me that there are isolated cases where this does occur, I do not believe that it is the general practice of attorneys to do so. For the past 20 years I have represented clients who have sustained traumatic brain injuries and was one of the founding members of the Traumatic Brain Injury Litigation Group of the American Association for Justice. In those 20 plus years, I have never heard attorneys even discuss preparing their clients for neuropsychological examinations.
While I was impressed with the thoroughness of the research in preparing this article, I was distressed to see so many citations to neuropsychologists who earn a living representing defendants in civil proceedings.
From an attorney’s standpoint, it is essential that the attorney be able to obtain the test materials as well as all scoring manuals, let alone the raw data. Furthermore, it is essential that counsel, whether plaintiff or defense, have the ability to utilize these materials during depositions and trial. In my experience, many neuropsychologists, in an effort to save money, have the tests administered and even scored by technicians and/or students. As a result, there is often a great deal of mis-scoring raising questions regarding not only the administration but interpretation of the data. When this occurs, it is essential that the fact-finder, in most cases a jury, be able to observe the test questions and the inaccurate scoring.