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How the Defense Tries to Disprove a Brain Injury

Abusing a Plaintiff By Hiding Information About a Brain Injury

There are a number of techniques the defense uses to try and disprove a brain injury. One of the most prominent is to have an expert administer mental exams to the plaintiff and then hide the raw data. The plaintiff’s attorney’s job is to have the expert release the raw data to the plaintiff and the court. If the expert refuses to do that, then the tests should not be permitted in testimony. Let’s look at how this works.

Initiating a Lawsuit for a Brain Injury

In this scenario, the plaintiff is involved in an accident involving multiple fractures and a head injury. Approximately half a year later, the fractures have healed, but the injured party is complaining of various problems with memory, concentration, and the ability to process information. He also has issues controlling his emotions and a lack of energy, as well as problems with multitasking. Not only is this noticeable to the client but also to coworkers and family members. 

These continuing problems are enough for him to visit a personal injury attorney. After exams by multiple physicians, it becomes apparent that the problems the injured party suffers from indicate a traumatic brain injury. The injury attorney files a lawsuit against the at-fault party in the accident.

Demanding Mental Exams to Dismiss Brain Injury

The defense tries to counter the plaintiff’s experts with mental exams. There are many different types of such exams. The most common are:

  • The Minnesota Multi-Phasic Personality Inventory 2 (MMPI2)
  • The Green Word Memory Test (WMT)
  • The Fake Bake Scale (FBS)
  • The Response Bias Scale (RBS)

Mental Status Tests In-Depth 

Personality tests such as the MMPI2, the FBS, and the RBS are used to ascertain whether the plaintiff is reporting their actual symptoms or exaggerating them. Besides, those with a somatoform disorder may report memory and concentration problems when in reality, their perception of them is enhanced by their mental illness.

A Word About Somatoform Disorders

Also called a somatic symptom disorder, this is a mental illness that causes the patient to perceive symptoms that cannot be explained by an illness or injury. There are several different types of somatoform disorders. Regardless of the type, medical tests cannot explain the person’s symptoms along with a similar deficit in their medical history and physical examination. People with this disorder often worry to the extreme about their physical complaints, so anxiety and depression are often included in the patient’s affect. This makes it very difficult for a doctor to diagnose a physical impairment. However, these disorders are not because of fabrication or exaggeration, malingering, or deliberate lying. 

The Green Word Memory Test (WMT)

As the name implies, the WMT is used to test memory. The way it works is that the questions are deliberately easy so that anyone could answer them. If the patient fails the test, there is a high likelihood that their credibility is lacking. 

How Does This All Play Out During Testimony?

In order to prove that the plaintiff does not have a brain injury, the defense will use an expert who will discuss the plaintiff’s test scores. Using the MMPI2 and the WMT, the expert will report that the plaintiff’s symptoms result from emotional or mental exaggeration. This is done in an effort to discredit the plaintiff.

The plaintiff’s attorney knows that clinicians believe that there is a fine line between a person’s ability to pass the test due to emotional or mental problems and the effects of a brain injury. For example, the MMPI2 is a test where the answers are given as true or false. Hence, scoring the test might lead to an erroneous result, plus it is difficult to label someone as having a newly defined mental illness after a head injury.

What Does the Plaintiff’s Brain Injury Attorney Do?

A plaintiff’s attorney will naturally ask for the data that led the expert to his or her determination. Here, the expert will often say that due to copyright, he or she is unable to reveal this information. This, the defense explains, is done to prevent test results from being abused by the lawyer for the plaintiff. In many ways, this disparages not only the injury attorney but also the court. 

Objecting to the Tests and Their Implications in Brain Injury

In order to prevent the plaintiff’s medical complaints from being dismissed, the attorney has several options. He or she can say that the plaintiff will undergo the tests but that the results must be turned over. The attorney can also demand that a refusal to turn over the results to the tests would by necessity eliminate the tests from being performed. Assuredly, the defense will object to both of these options.

Why Does the Plaintiff’s Attorney Need the Test Results?

In order to adequately present the client’s case, the attorney for the plaintiff must be given all pertinent information. This also allows for reasonable, inclusive cross-examination of the expert. Sometimes, the defense will say that the privilege that is part of the doctor/patient relationship disallows disclosing the information. However, the court is able to override this. 

By adding the MMPI2 and the WMP to the mental status exam, the results can be tarnished by fatigue in a patient with a typical brain trauma due to the length of the examination. In many brain-injured patients, memory is worse after a long day, and taking a lengthy exam mimics this issue. This would make the test unreliable.

Copyright Is Another Way the Defense Interferes with a Brain Injury Claim

Here, the defense claims that the written questions and their answers were not part of the original discovery due to copyright, and giving the test results to the plaintiff’s attorney would disrupt the integrity of the test. The court can rule otherwise, saying that the plaintiff should receive the materials. 

The End Result

Denying the plaintiff the right for his or her lawyer to cross-examine the experts is saying that the plaintiff should rely on their word without discussion. This is no different than other mechanisms where the defense tries to block information. In the case of a brain injury, the expert would be presenting information that helps the defense without being questioned. This is unfair to the plaintiff and must be fought vigorously by their attorney. 

Sacramento Personal Injury Lawyer

I’m Ed Smith, a Sacramento personal injury lawyer. Having the tools to present your client’s case clearly and in its entirety is instrumental in upholding justice. When the defense tries to interfere with this, your attorney must uphold their client’s rights. For free and friendly advice, call me at (916) 921-6400 or (800) 404-5400. You can also reach me online

For the past 38+ years, I have protected my clients’ rights in all types of traumatic events, car accidents, and wrongful deaths.

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