At the December 2, 2013 annual meeting of the Radiological Society of North America (RSNA), researchers from St. Louis University School of Medicine in St. Louis, MO, presented evidence utilizing diffusion tensor imaging (DTI) to show that “soldiers who suffered mild traumatic brain injury induced by blast exposure exhibit long‑term brain differences.”
According to the article uploaded by PR Newswire, researchers compared DTI derived fractional anisotropy (FA) values in ten veterans who had been diagnosed with mild TBI with those of ten healthy controls. “Comparison of FA values showed significant differences between the two groups, and there were significant correlations between FA values and attention, delayed memory, and psycho motor tests scores. Since the victims were, on average, more than four years removed from their injuries, the results suggest the presence of a long‑term impact of blast injury on the brain.”
The reported story can be found here.
A Florida Court has again stricken the use of the MMPI‑2‑RF Fake Bad Scale as well as the “Slick” diagnostic criteria for malingered cognitive dysfunction.
As readers of this blog will recall, the Fake Bad Scale was designed by Paul Lees Haley, Ph.D. The Slick diagnostic criteria were developed by D.J. Slick. He and his colleagues proposed a set of diagnostic criteria that defines psycho metric, behavioral, and collateral data indicative of possible, probable and definitive malingering of cognitive dysfunction for use in clinical practice and for defining populations for clinical research. (See Diagnostic Criteria for Malingered Neuro Cognitive Dysfunction: Proposed Standards for Clinical Practice and Research. Slick DJ, Sherman EM, Iverson GL. Clin Neuro Psychol 1999 Nov.; 13(4):545‑61.
In the matter of McGann v. State Farm Mutual Automobile Ins. Co., Case Number 2011-CA- 781, (Circuit Court of the Ninth Judicial Circuit, Osceola Cty, Fl.), plaintiff moved to strike the testimony of defendants CME psychologist, Laurence Levine, Ph.D. In particular, plaintiff sought to preclude the testimony of Dr. Levine in regard to the MMPI-2‑RF‑Bad Scale (“FBS”) testing and his use of the Slick criteria, and opinions that the plaintiff was malingering and or exaggerating his symptoms.
Pursuant to the new standard adopted in Florida, the court conducted Daubert hearings over three days and reviewed the testimony from several experts and reviewed filed articles and affidavits.
The court found:
“[T]he FBS and Slick criteria are unreliable, generally unaccepted in the scientific community and are not objective measurements of malingering, exaggerating or over reporting of symptoms. Their probative value is outweighed by the prejudicial impact. Finally, the court holds the testimony in question invades the province of the jury as to determination of witness credibility.”
The court then ordered and adjudged that Dr. Levine was precluded from making any reference to FBS testing and Slick criteria as evidence of malingering, exaggeration or over reporting of symptoms, both in general and with respect to the plaintiff, and precluded Dr. Levine from offering any opinions on causation of the plaintiff’s complaints/injuries to the accident.
It has been a busy couple of weeks as I have been travelling to give presentations to various trial attorney associations and brain injury groups.
On Friday, November 8, 2013, I was invited to give a presentation at a medical legal conference sponsored by the Brain Injury Association of California in Napa, California. This two day program brought together some of the country’s leading experts and advocates of persons with acquired traumatic brain injury. My topic was the admissibility of diffusion tensor imaging (DTI); a very new and exciting diagnostic tool to objectively confirm the diagnosis of traumatic brain injury.
The following week found me in Houston, having been invited to address the Houston Trial Lawyers Association’s monthly meeting. My topic was identifying, preparing, and handling the traumatic brain injury case. The forty five minute presentation addressed issues of identifying clients with traumatic brain injury, understanding their problems and symptoms, retaining the appropriate experts and putting together their case for settlement and/or trail.
Finally, last Friday, I co-chaired the New Jersey Association for Justice’s Trial Advocacy Program at the mid year convention in the Meadowlands. I was also a speaker for the program. My topic was deposing the defense expert.
As stated, it was a busy two weeks, but the responses were great and I was glad I was able to help and teach attorneys how to better represent their clients.
During his presentation at the recent North America Brain Injury Society’s (NAIBIS) Medical Conference in New Orleans, Louisiana, Hal S. Wortzel, M.D. gave example after example of physician misuse of science in the diagnosis and treatment of traumatic brain injury. It now appears that Dr. Wortzel committed the same offense.
In a recent decision out of the US District Court, District of Colorado, the US District Court Judge granted Defendant’s motion to bar various opinions expressed by Dr. Wortzel. See Doty v. City and County of Broomfield, (Civ. Action No. 12‑Cv‑01340‑PMB‑NJW, October 4, 2013).
Interestingly, Dr. Wortzel, who by his own admission said 95% of his civil forensic neuropsychiatric practice is referred by defendants, (Capps v Red Devil at page 136) was retained here by the plaintiff. The plaintiff’s injuries arose out of an incident that occurred while plaintiff was in the custody of the Broomfield Detention Center. Plaintiff had sustained four prior “head injuries,” the most serious occurring in 1995 when Plaintiff sustained a brain injury in a fall from a three story building. As a result of the incident at the detention center, plaintiff alleged that he was experiencing new, as well as exacerbated, cognitive and emotional difficulties.
Plaintiff retained Dr. Hal Wortzel, a forensic neuro-psychiatrist. Defendants filed a Daubert motion to preclude Dr. Wortzel from offering any expert opinions at trial.
The Court found that although Defendant did not dispute Dr. Wortzel’s expertise in the area of neuropsychiatry, Wortzel’s expert report failed to connect this expertise to the particular facts at issue in the case. The Court noted, for example, that Dr. Wortzel stated, “the natural history of mild TBI is one that typically involves a complete recovery,” and that the “medical literature generally derives from investigations of individuals who had sustained isolated, uncomplicated mild TBIs,” and that there was a “paucity of medical literature/evidence pertaining to plaintiff’s case.” The Court then noted, “Without further explanation, he [Dr. Wortzel] states that it’s possible that Plaintiff’s previous injuries rendered him more susceptible to brain injury. He does not, however, link this conclusion to the evidence he discusses, such as Plaintiff’s medical history or neuropsychiatric examination and does not explain how it’s conclusion is supported by the medical literature.”
The Court went on to state:
More generally, Dr. Wortzel does not explain what methodology he used to arrive at his conclusion or whether such methodology is one that is generally used by other experts in his field. Thus, the Court is unable to “focus on [the] expert’s methodology as it is required to do (citation omitted) or apply any of the relevant non dispositive factors to assess reliability (citation omitted). Absent a description of the methodology applied in its context in the field of neuropsychiatry, plaintiff has not carried its burden of showing “that the methodology applied was reliable, that sufficient facts and data as required by the methodology used and that the methodology was otherwise reliably applied.
The Court concluded:
Without citation to relevant medical literature, explanation of how the cited evidence supports his conclusion or explanation of the methodology he used to derive his opinion, the Court finds that Dr. Wortzel’s opinion does not meet the strictures of Rule 702. See In re: Trasylol Prods Liability Litigation, 709 F. Supp 2nd 1323, 1346 (S.D. Fla. 2010) a proffered expert that merely ‛regurgitates’ facts and then reaches conclusory opinions assumes the role of advocate and invades the province of the trier of fact.
I am very excited to learn that I have been nominated to become a Fellow of the International Society of Barristers. The International Society of Barristers was formed to recognize each era’s best legal advocates that they might join together to support these common goals:
- Retaining trial by jury in litigated matters;
- Improving advocacy under an adversary system;
- Recognizing advocacy as a distinct specialty, with the creation of proper standards for those holding themselves as advocates;
- Abolishing animosity between counsel representing plaintiffs and defendants, replacing it with a recognition that all trial lawyers are advocates fully representing the rights of all clients;
- Encouraging and demanding ethical conduct by all involved in litigation –parties, witnesses, counsel, and judges;
- Insisting that clients be represented by independent counsel, owing their allegiance to the client ; and
- Protecting the rights of citizens, the independence of the judiciary and the integrity of the bar.
Membership is by invitation only, which is proceeded by a rigorous screening process that considers the lawyers ability, experience, accomplishments, and ethical standards as assessed by trial lawyers and judges.
I look forward to becoming a member.
I just received a copy of the October 2013 issue of Radiology which includes a very interesting research article entitled “Symptomatic White Matter Changes in Mild Traumatic Brain Injury Reassemble Pathologic Features of Early Alzheimer Dementia. (Fakhran, S, Yaeger K, and Alhilali, L. Radiology Vol. 269:1‑October 2013).
These researchers from the University of Pittsburgh School of Medicine conducted a retrospective study to evaluate white matter integrity in patients with mild traumatic brain injury, who did not have morphologic abnormalities on conventional magnetic resonance (MR) imaging, with diffusion‑tensor imaging to determine any relationship between patterns of white matter injury and severity of post concussion symptoms.
Their study “correlates white matter abnormalities in patients who had mild TBI with patient‑reported post concussion symptoms. The authors concluded that while the results are preliminary, they “suggest that symptomatic findings in patients with mild TBI may not be the result of the direct neuronal or axonal injury, but rather a neuro degenerative cascade whose initiating event is trauma.
Most interestingly, since this was a retrospective study in which the researchers searched their enterprise‑wide electronic medical records of twenty academic and community hospitals to identify patients who underwent MR examinations with diffusion‑tensor imaging for mild traumatic brain injury, this would certainly imply that these patients underwent diffusion‑tensor imaging in a clinical setting as opposed to pure a research setting. This has important implications for asserting that diffusion‑tensor imaging is being used clinically to assess patients.
I just recently returned from New Orleans where the North America Brain Injury Society held its 26th legal conference on traumatic brain injury as well as its 11th medical conference on traumatic brain injury. As co-chair of the legal conference I was very pleased with the high quality of the speakers and their presentations.
The conference brought together not only some of the top neuro attorneys in the United States, but also some of the leading experts in the field of traumatic brain injury treatment and rehabilitation.
My topic at the conference was “Direct Examination of Experts”.
The conference had approximately 300 attendees this year. The next NABIS legal conference will take place on March 19‑22, 2014 in San Francisco, California. The NAIBIS legal conference is being held in conjunction with the International Brain Injury Association’s 10th world congress on brain injury which will be held at the same time.
I look forward to seeing everyone there.
New York Court Rules Plaintiff's Own Neuropsychologist May Be Present during Defense Neuropsychological Evaluation
I have previously wrote on this blog, published and spoken at conferences on the topic of third party observers during neuropsychological testing. Recently a New York State trial judge entered an order permitting plaintiff’s treating neuropsychologist to be present to observe a neuropsychological evaluation to be conducted by defendant’s neuropsychologist. Conklin v. Setauket Knolls Associates , Supreme Court of the State of New York, IAS Part 43‑County of Sussex (August 13, 2013).
In Conklin plaintiff filed suit for personal injuries arising from an accident that occurred when plaintiff fell from a ladder while working at defendant’s apartments. Defendant scheduled a defense medical examination with Dr. Laurence Abelove, a psychologist. When plaintiff arrived for the evaluation, he was accompanied by psychologist Dr. Stephen Honor to act as a third party observer. Dr. Abelove refused to conduct the examination in the presence of Dr. Honor, asserting that the presence of Dr. Honor would “substantially affect the outcome of the process.” Plaintiff refused to move forward without Dr. Honor being present. Cross motions were then filed for costs and sanctions.
The trial court, citing to Gray v. Victory Memorial Hospital, 142 Misc. 2d 302, 536 N.Y.S 2nd, 679 (Sup. Ct. Kings Cty 1989) held that “the presence at a physical examination of a party’s chosen representative, including a physician, should be allowed absent any valid counter veiling reason.” The trial court found here, that defendant failed to meet that burden. The Court found that a conclusory statement by defendant’s examining psychologist that “a neuropsychological examination is negatively impacted by the presence of anyone in the room other than the patient or plaintiff is patently insufficient to meet the burden for excluding Dr. Honor from being present at the examination.” As such the Court held that Dr. Honor could be present at the rescheduled neuropsychological evaluation.
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New Study on Headache Following Mild Traumatic Brain Injury Dispels Myth that All Mild TBI's Resolve in Three to Six Months
Researchers at the University of Washington recognized that headaches are one of the most common and persistent symptoms following traumatic brain injury. They conducted a perspective study of the prevalence and characterization of headaches following mild traumatic brain injury.
The researchers enrolled 212 subjects within one week of mild traumatic brain injury (MTBI) who were hospitalized for observation or other system injuries in a Single Level I US trauma center and followed by telephone at 3, 6 and12 months after injury for evaluation of headaches. Headaches were classified according to the ICHD‑2 criteria as migraine, probable migraine, tension‑type, cervicogenic or unclassifiable headaches. Inclusion criteria were older than 18 years of age, and acute MTBI during the current admission based on CDC criteria (Glasgow coma scale 13‑15 on emergency department evaluation, any period of loss of consciousness not exceeding thirty minutes, and any period of alteration of consciousness or post‑traumatic amnesia that did not exceed 24 hours). 18% of subjects reported having a problem with headaches pre‑injury. 54% of subjects reported new or worse headaches compared to pre‑injury immediately after injury, while 62% at three months, 69% at six months and 58% at one year. More than one‑third of the subjects report persistent headache across all three follow up time periods. The researchers concluded that headache after MTBI was very common and persistent across the first year after injury.
The researchers found that the prevalence of new or worse headache compared to pre‑injury headache after MTBI was 54% or greater at all time points over the first year following MTBI. “This finding suggests that PTH is not only common, but persistent. These high rates of PTH are similar to other studies that have also noted high rates of headache across the first year after MTBI.”
Based on the civilian data reported in this study, an early headache after TBI identifies people at high risk of developing frequent, chronic headaches who may benefit from headache identification, assessment, and management.
This is yet further evidence that the argument that MTBI is self limiting and last no longer that three to six months is an outdated view not supported by current research.